Pro-gun Rights and Fear

My passion has always been how the law looks at inalienable rights and I have directed my efforts primarily toward reviewing proposed bills and laws. For years Indiana has had in various forms proposals for what is now commonly referred to as Constitutional Carry. Most recently HB 1159 “Regulation of firearms” was proposed. While one side supported this bill the other side strongly lobbied by Law Enforcement Agencies was almost unanimous in opposition.

What is the seen by the ordinary person when information is provided?

Law Enforcement holds to their position that everyone having guns without a license is a danger to them and everybody else. Individuals who believe law enforcement is their protection against crime tend to support the law enforcement position. Individuals who desire being able to carry a handgun are often called “gun nuts”.

Taking sides

Many are no doubt aware there has been a major dust up over Constitutional Carry HB 1159, and being drawn into the battle HB 1071 which was proposed as means to help victims who received a restraining order obtain handgun carry protection under certain conditions. (HB 1071) Now as fate would have it insults are flying. Elected members are criticized for doing their job, not doing their job and lying to the end that the public is seeing polarization doing its malicious work.

Enter Gun Groups supporting pro-gun rights.

A notice I received today in favor of pro-gun legislation from a pro-gun group can help explain why people who desire gun control removed are seen by so many as gun nuts. The communication requested I contact the named legislators and complain about the lack of passage of gun legislation because of specified legislators betraying, deceiving, lying and being “hostile to any pro-gun reforms”. It is not a pro-gun right it is a right to Life.

What did the average person just read?

What did someone who saw this pro-gun group notice in Facebook news feed or perhaps in an e-mail update read? Based upon the number of negative remarks about these two bills people see nothing except pro-gun rights. If you read any of my reviews of legislation you will never find any mention of anything other than individual rights. The vast majority of people fear guns because they perceive those who want guns are pro-gun nuts. Such a fear would logically be justified after all we are talking about a lethal weapon and people being unable to behave in a civilized manner. This would mean everybody would have guns criminals would be fortified.

Have you read the Indiana law on gun control? Does the public understand that only a “proper person” can carry without facing charges? Do you really think a criminal is going to ask for a piece of paper giving permission to own and carry? Do you understand that a criminal cannot be authorized to purchase or carry? Does a criminal care? Yet law enforcement tells you that without this license they cannot do their job as well.

Why do you think of this issue as a pro-gun right?

Black’s Law Dictionary 6 th ed defines a constitutional right as

“A right guaranteed to the citizens by the United States Constitution and state constitutions and so guaranteed as to prevent legislative interference therewith.”

What does the Bill of Rights in the Indiana Constitution dictate? “ The people shall have a right to bear arms, for the defense of themselves and the State.” How could anyone believe the meaning of having the right to bear arms for the defense of themselves is a pro-gun right? The right is not pro-gun it is the right to defend one’s self.

Life is an absolute individual right to self- defense nothing less.

Indiana is prohibited from passing any law which depends upon any authority except as specifically provided in the Indiana Constitution. Life a Right defined and protected by the Indiana Constitution cannot be subject to legislation in order to be exercised. When people discuss the right to possess and carry a gun it must be acknowledged that that purpose is not the possession of a deadly weapon the purpose which is guaranteed is to have the ability to defend life.

Requiring permission from the government or other individuals makes protecting Life a privilege controlled by the government and others rather than an Individual Right of our existence. Do you believe another individual has the authority to determine your ability to defend your life or that of a loved one?

We are all created equal as individuals how can we debate the ability to protect the minority of one to be able to provide for self-protection? Without each Life being equal and each right to defense being equal we are responsible for who has the right to Live and who can die because they were not allowed to fight.

“WE DECLARE, That all people are created equal; that they are endowed by their CREATOR with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness; that all power is inherent in the people; and that all free governments are, and of right ought to be, founded on their authority, and instituted for their peace, safety, and well-being.”

https://nagr.org/2017/bloomberg_puppetshow_p.aspx?pid=fb1a

http://www.law.indiana.edu/uslawdocs/inconst.html

https://iga.in.gov/legislative/2017/bills/house/1071

https://iga.in.gov/legislative/2017/bills/house/1159

Indiana SB 15: Government registration required for quality of Life

WE DECLARE, That all people are created equal; that they are endowed by their CREATOR with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness.  How often we have heard these words yet few of us comprehend to what extent they fundamentally impact our very existence.  To an individual besieged by a disease the inalienable right to a life is a fight for survival on a daily basis.  Self-determination and the method each chooses to maintain their ultimate property right of health cannot be confiscated by government.

Who has the right to claim superiority over the individual in determining health care?         

Why can government determine it has the authority to control an inalienable right?  There is a Constitution guaranteeing the inalienable right to life against legislative interference through laws.  Since each individual is the sole possessor of their life why would one need to acquire government permission to access health care medication?

The Hierarchy of Law controlling Indiana government is the Constitution of the United States and of this state and all statutes of the general assembly of the state in force, and not inconsistent with such constitutions.  The Oath of office as prescribed in Article 15 Section 4 states “Every person elected or appointed to any office under this Constitution, shall, before entering on the duties thereof, take an oath or affirmation, to support the Constitution of this State, and of the United States, and also an oath of office”.  The language is ordinary and plain laws cannot be inconsistent with the constitutions.  The solemn Oath elected officials are required to take binds them as our representatives to abide by the same rule of law governing all.  

What is the conflict over authority? 

For years there has been conflict over marijuana a substance which government has classified illegal.  For years there have been questions by the people.  Why is it illegal?  Where is the authority for government to decide it is harmful?  Why does government believe it is in the best interest of the individual to punish them for using a substance when use causes harm to no one else?   Why when the Indiana Constitution states in “ Section 25. No law shall be passed, the taking effect of which shall be made to depend upon any authority, except as provided in this Constitution.” does government refuse to retreat from the position that government is in charge of determining the possession and use of marijuana?

How is government responding to the demand to legalize use of marijuana? 

The response from Indiana has been a series of bills over years claiming to address the issues of marijuana use, possession, growth and anything else to do with what is essentially vegetation.   This year one bill finally made it out of committee on a 5yea 3 nay vote.  SB 15 mirrors the previously reviewed bill SB 255 Medical marijuana.  SB 15 Hemp extract is Indiana once again defining who and for what purpose this time Hemp extract a derivative substance can be legally qualified for medical use.  State Senators passing a law legalizing a substance government has no authority to regulate is an interesting concept of compliance with the constitutional oath each swore to uphold.

Who decides what substance, access, disease, possession, administration and regulation?

SB 15 Defines hemp extract: “As used in this chapter, “hemp extract” means a substance containing:  three-tenths percent (0.3%) or less tetrahydrocannabinol  (THC) by weight; at least ten percent (10%) cannabidiol by weight; and no other controlled substances.”

Indiana via SB 15 establishes a hemp extract registry through the state department of health for certain physicians, nurses, individuals, and caregivers determining their suitability for involvement in the state program and registering them as approved for the program.

Indiana lawmakers determine that the only allowable disease considered for treatment is  “intractable epilepsy”  a seizure disorder that has been diagnosed by a physician in a patient who has not responded to at least three (3) other seizure disorder treatment options.

Indiana lawmakers decide that the approved definition of a patient is a “patient” refers to an individual who is: less than eighteen (18) years of age; or at least eighteen (18) years of age but started treatment with hemp extract described under this chapter when the individual was less than eighteen (18) years of age; and who has been diagnosed with intractable epilepsy by a physician.” with the requirement that the physician be Indiana licensed and board certified in neurology. The bill continues with the definitions for caregiver and nurse.

Indiana state department of health shall register a physician or nurse who meets the government requirements, completes a registration form and pays a registration fee.  A patient or caregiver shall be issued a registration card if specified requirements are met including age, being a patient, being an Indiana resident, providing a certified statement by a registered physician confirming program requirements and paying the registration fee.  The caregiver application for registration also requires meeting specified conditions for approval.  Registration is valid for one year or as requested by physician and renewals charge a fee.

Following patient or caregiver registration the state department shall contact and provide the local health department the name, address and any other identifying information the state determines necessary to provide.

Provisions are also included for a pilot study registry for monitoring research performed by a state educational institution.  There are requirements for submitting an application to be included in the pilot study program and standards for conducting research.  There are also requirements for dispensing hemp extract for the pharmacist.

Indiana provides a defense to a prosecution under this chapter for individuals who are properly registered when certain requirements are met.

What do we conclude from the actions of Indiana?  

The constitutions are the law of the land for Indiana and since our elected legislators are bound by solemn oath to uphold the terms of those documents perhaps we should begin to ask serious questions.  No constitutional provision mandates that government has been granted the authority to control the quality of life of the individual through approval and licensing of health care decisions.

This bill would help some individuals with only one specified malady, however to accomplish this goal Indiana is violating “Section 23. The General Assembly shall not grant to any

citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens.” Legislators are granting to a select group of individuals the special privilege of relief from a specific disease, such relief equally belongs to all citizens.

The bill fails to cite the constitutional authority to regulate marijuana substances but criminalizing was also done without specified authority.  A republic limits the authority government has over conduct of an individual it does not limit or license inalienable rights which belong to each individual through our very existence.  Life is a Right and the quality of that life is an individual possession which does not require government registration, permission or approval.  Life and health issues belong to the individual.

 

http://www.diffen.com/difference/Democracy_vs_Republic

http://www.law.indiana.edu/uslawdocs/inconst.html

http://codes.findlaw.com/in/title-1-general-provisions/in-code-sect-1-1-2-1.html

http://iga.in.gov/legislative/2017/bills/senate/15

 

The Right to Life as defined by The Department of Marijuana Enforcement

“Section 1. WE DECLARE, That all people are created equal; that they are endowed by their CREATOR with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness; that all power is inherent in the people; and that all free governments are, and of right ought to be, founded on their authority, and instituted for their peace, safety, and well-being. For the advancement of these ends, the people have, at all times, an indefeasible right to alter and reform their government.”

The individual inalienable right to life must be one of self-determination.  The means by which each determines to maintain their life is fundamentally one of property rights.  As sole owners of our own being the right to exercise dominion over our own life includes determining health care needs.  A republic has a written constitution protecting inalienable rights from the government even if that government acts upon the will of the masses.  Black’s Law Dictionary 6th ed defines a constitutional right as “A right guaranteed to the citizens by the United States Constitution and state constitutions and so guaranteed as to prevent legislative interference therewith.”    Is it not the right of the individual to determine their quality of life and how to maintain it without permission from the government?

As each individual is born with the survival instinct what would the ordinary individual believe is the meaning of the inalienable right to life?   Does it mean an individual has the right to life determinations only if they obtain a license from Indiana?    Do you see any such condition on your right to life?  That right to determine medical care for your quality of life has been held hostage through legislative interference known as laws.

The Rule of Law for Indiana is contained in the hierarchy of Law beginning “The law governing this state is declared to be: First. The Constitution of the United States and of this state. Second. All statutes of the general assembly of the state in force, and not inconsistent with such constitutions.”    This defines the oath of elected officials plainly stating laws cannot be inconsistent with the constitutions.

SB 255 is government defining who and for what purpose an illegal substance known as marijuana can be used for medical use.   But, this bill is nothing new this legislation has been attempted in the past.  And it still is confronted by the fact that Indiana has determined the illegality of a substance without any authority granted in the Indiana Constitution in violation of “Section 25. No law shall be passed, the taking effect of which shall be made to depend upon any authority, except as provided in this Constitution.”   State Senators and Representatives take a Constitutional Oath which states:  “ Every person elected or appointed to any office under this Constitution, shall, before entering on the duties thereof, take an oath or affirmation, to support the Constitution of this State, and of the United States, and also an oath of office.: (Indiana Constitution Article 15 Section 4).”

Since the Indiana Constitution delineates exactly the duties and limits of elected officials why are laws passed by these elected persons which violate their Oath, the Constitution and the Law of Indiana?

SB 255 “Establishes a medical marijuana program (program), and permits caregivers and patients who have received a physician recommendation to possess a certain quantity of marijuana for treatment of certain medical conditions”.  Your physician determines marijuana will give you relief to live your life while controlling your pain, simple, right?  Wrong!

First Indiana “Establishes the department of marijuana enforcement (DOME) as a state agency to oversee the program, and creates the DOME advisory committee to review the effectiveness of the program and to consider recommendations from DOME.”

A DOME Advisory Committee is established.   This newly created committee has 4 voting members and 5 non-voting members.  These members are appointed by speaker and minority leaders of the House, president pro tem and minority leader of the Senate, the Commissioner of the Department of Revenue, the Director of the Department of Agriculture, and the State Health Commissioner.  Each member of the advisory committee is entitled to receive specified compensation.

Sec.7. Provides authority to the advisory committee which “shall do the following: Review rules adopted by DOME.  Review legislative proposals suggested by DOME.  Evaluate the medical marijuana research and development program under IC 7.1-9-5. Evaluate the operation of the medical marijuana program.  Consider any other matter that has bearing on the operation of the medical marijuana program.”

A New Article 8 MEDICAL MARIJUANA defines all the components of this privilege to be granted to only a few individuals.  Statutory definitions would include: adequate supply for treatment, Medical marijuana card, Qualified patient, and Treatable medical condition all mandated by the government.

SB 255 places DOME in charge of the determination for medical treatment use of marijuana not the individual and not the physician.  Under this bill a person Dome determines to be a “Qualified patient” under the defined covered treatable medical conditions which includes specified conditions and “Any other illness or condition determined by DOME to be a treatable medical condition.” must apply to DOME to receive a medical marijuana card.  That application must include a physician recommendation, verification that the physician is licensed, and compliance with any other rule adopted by DOME.  In addition the bill “Authorizes DOME to grant research licenses to research facilities with a physical presence in Indiana.”

The application will be denied if among other things the applicant does not meet the criteria required by DOME.  The card can be good for up to two years or shorter if the physician expressly recommends a shorter period.  DOME may charge a reasonable fee up to $100 to apply for a card.  There is a section specifying the quantity of marijuana allowed to be possessed and a penalty for fraud.

The DEPARTMENT OF MARIJUANA ENFORCEMENT is in charge of administering the medical marijuana program.   DOME will be:” the DOME committee consisting of four (4) commissioners who shall direct and oversee the operation of DOME who are appointed by the governor; the executive director; and other employees necessary to carry out the duties of DOME.  Each commissioner will be compensated with a minimum salary per diem and reimbursement for traveling and other expenses actually incurred in connection with duties.  In order to be appointed a commissioner must meet certain qualifications defined in SB 255.    DOME shall have the power to employ all necessary employees, determine their duties, and, subject to the approval of the DOME committee and the budget agency, fix their salaries.  In addition, DOME is given all the authority of an administrative agency including establishing the program, and adoption of all necessary rules to implement the program.

Sections of IC 35-48-4 are amended to provide defense to an action or prosecution for qualified individuals for possession of an instrument in violation of the code and possession of specified substances in violation of code.

The Constitutions have not mandated that government has authority to determine the quality of life that an individual has the right to maintain unless government provides approval following a qualification and licensing process.   This bill would help some individuals who are willing to become compliant with government in order to receive relief from unbearable medical conditions.   However because of the limits of qualified conditions it fails to comply with the Indiana Constitution “Section 23.  The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens.”

And this bill does nothing to defend the Qualified individual in yet another Right guaranteed protection by the Constitutions.  The Right to self-protection through the ownership and carrying of a firearm is automatically denied.  The Ninth Circuit Court of Appeals recently upheld a lower court decision that just by having a medical marijuana card precludes an individual from keeping and bearing arms.  Findings were based not only on the federal laws that still make marijuana users criminals even if the individual resides in a state where medical marijuana is legal but also on an “open letter” from ATF stating the federal prohibition from allowing the firearm sale to be completed.

So you could receive relief from a debilitating medical condition but because the federal government considers marijuana an illegal substance you are not allowed to provide yourself with protection.   In a Republic limits have been placed upon government such as those found in the Indiana Constitution.  Those limits of government authority protect inalienable rights of the individual which cannot be taken away by government action.  The right to Life and the quality of that life is not the possession of any entity except the individual.  Life is a right not a government qualified for compliance privilege.  The minority of one is not required to rely upon government permission to sustain or protect one’s self.

http://www.diffen.com/difference/Democracy_vs_Republic

http://iga.in.gov/legislative/2017/bills/senate/255#document-a3e68bdb

http://www.law.indiana.edu/uslawdocs/inconst.html

http://codes.findlaw.com/in/title-1-general-provisions/in-code-sect-1-1-2-1.html

http://www.thenewamerican.com/usnews/constitution/item/23993-ninth-circuit-rules-marijuana-card-holders-may-not-own-firearms

 

 

You Thought HB 1066 Bias Crimes was Unique?

You are not less valuable than any other individual Unless Indiana passes a law which states you are.  Laws continue to be discussed and implemented which determine some individuals are entitled to have enhanced punishment executed on those who do them harm.  HB 1066 which I reviewed shortly after it was posted received only a few comments so I am surprised at the reaction to the passage out of committee of a bill SB 439 referred to by some as a “hate crime” bill.   There are more than two “Bias Crime” bills making the rounds in the Indiana General Assembly.  These types of bills are nothing new past sessions have seen similar.

What is a Bias Motivated Crime?

HB 1066 reviewed prior amends IC 10-13-3-1 to define a “bias motivated crime” as a crime in which “the person who commits the crime knowingly or intentionally selects:  the individual against whom the crime was committed; or any property damaged or otherwise affected by the crime; in whole or in part because of the actual or perceived race, color, religion, ethnicity, national origin, sexual orientation, gender,  gender identity or expression, or disability of the individual or a group of individuals, whether or not the person’s belief or perception was correct.”   IC 10-13-3-38 would be amended to require Each law enforcement agency to collect and submit information concerning bias motivated crimes to the Indiana central repository for criminal history information in the manner and form prescribed using the National Incident Based Reporting System (NIBRS) format as required by the department.  Further a new condition is that each law enforcement agency shall submit data regarding the commission of bias motivated crimes to the Federal Bureau of Investigation.   HB 1066 amended IC 35-38-1-7.1 adding to the already listed “special individuals” to be given special consideration when determining punishment of the person committing the crime “the individual against whom the crime was committed; or any property damaged or otherwise affected by the crime;  in whole or in part because of the actual or perceived race, color, religion, ethnicity, national origin, sexual orientation,  gender, gender identity or expression, or disability of the  individual or a group of individuals, whether or not the  person’s belief or perception was correct.”  The court power when determining additional punishment would extend not only to persons identified but also property.  The result is that some individuals are more worthy of consideration when deciding punishment for a crime committed against them.   These special circumstances are to be based specifically upon government selected identified characteristics

Who determines Aggravating Circumstances?

SB 439 which passed out of committee amends IC 35-31.5-2-260.2, to include what a “Relative” of a public safety official means.  Then IC 35-38-1-7.1 is amended to provide the court consideration of aggravating circumstances “In determining what sentence to impose for a crime”.  In determining the sentence based upon preferential aggravating circumstances the court may consider: “The person committed the offense with the intent to harm or intimidate an individual because of the individual’s perceived or actual: race; religion; color; sex; gender identity; disability; national origin; ancestry; sexual orientation; or status as a public safety official or a relative of a public safety official.”

Who identifies what a Bias Motivated Crime is? 

SB 336 has three distinct proposals.  First the bill amends IC 5-2-1-9 adding that the board shall adopt all necessary rules to carry out the provisions of this chapter and that  “ the standards adopted by the board for each program described in this subsection must include requirements for mandatory training in identifying, responding to, and reporting bias motivated crimes.”   The programs include the minimum basic training program required for a law enforcement officer; the mandatory inservice training program required for police officers and police reserve officers; the town marshal basic training program; and the police chief executive training program.  Second, SB 336 now mirrors the language in HB 1066 defining the meaning of a “bias motivated crime” and exactly matches the specified individuals and the court power when determining additional punishment which would extend to not only persons identified but also property.  Third SB 336 follows the same reporting except the NIBRS format is not listed, however the requirement of reporting the data to the Federal Bureau of Investigation is included.

What is enhanced punishment?

SB 270 would provide:” Battery on a sports official. Increases the penalty for battery if it is committed against an individual certified as a referee, an umpire, or an athletic official.”  The bill adds yet another special consideration person defining that a “Certified athletic official“, means an individual serving as: a referee; an umpire; or an official; at an athletic event, if the individual has been certified as a referee, an umpire, or an official by a national certification program”  is included in those covered under offenses committed against those listed as a public safety official which includes a law enforcement officer, employee of a penal facility, employee of the department of corrections, probation and parole officer, community corrections worker, home detention officer, department of child services employee, firefighter, emergency medical provider, a judicial officer and an individual related to those specified by blood, half-blood, adoption, marriage, or remarriage, is entitled to having imposed the specified penalties related to each listed offense.        

Battery against utility workers requires Felony punishment?  

HB 1388 would add Utility worker to the already extensive list of covered individuals and their relatives entitled to be vindicated through enhanced punishment.   “Utility worker” means an individual employed by: a public utility; a municipally owned utility; a cable or satellite television company; a telecommunications carrier; an electric cooperative; a telephone cooperative; or nonprofit utility.”  Punishment could increase to “a Level 6 felony from a Class B misdemeanor” and raises the offense to a Level 5 felony if the offender used bodily fluid or waste and knew or recklessly failed to know the substance was infected with hepatitis, tuberculosis, or human immunodeficiency virus.”

Another try to give preferential protection to utility workers.

HB 1480 just like HB 1388 defines and adds Utility worker to the already extensive list of covered individuals and their relatives entitled to be vindicated through enhanced punishment which could increase to“a Level 6 felony from a Class B misdemeanor.   HB 1480 does not include the bodily substance clause instead this bill would make the offense a level 5 felony if it resulted in bodily injury.

Increased penalty for battery against public safety official or relative.   

HB1297 “Increases the penalty for battery if it is committed against a public safety official or a relative of a public safety official because of the official’s status or perceived status as a public safety official, and increases the penalty for criminal recklessness if it is committed against: a public safety official while the official is engaged in the official’s official duties; or a public

safety official or a relative of a public safety official if the offense is committed because of the official’s status or perceived status as a public safety official.”  “Relative” means an individual related by blood, half-blood, adoption, marriage, or remarriage, including: spouse;  parent or stepparent; child or stepchild;  grandchild or stepgrandchild;  grandparent or stepgrandparent;  brother, sister, stepbrother, or stepsister;  niece or nephew; aunt or uncle; a daughter-in-law or son-in-law; mother-in-law or father-in-law; or a first cousin.”

What do all of the above bills have in common?  

Simple,  they all divide us into groups creating selected individuals because of their actual or perceived status who are provided greater protections because the penalties for harming these special people is determined to be greater than penalties for harm caused to all the others not included in the government preference list.

How do the people resolve the matter of government selecting special individuals?

The Oath taken by Indiana lawmakers binds them to the manner in which they conduct the business of the people.  That solemn promise is to preserve the terms of the U.S. Constitution and the Indiana Constitution and all statutes of the general assembly of the state in force and not inconsistent with such constitutions.  Why can there be any question as to the absolute responsibility of the members of the General Assembly?  What will it take for individuals to stand up for their inalienable right to equality?

The absolute limit to the authority granted to Indiana government is established in Section 25 of our Indiana Constitution, “No law shall be passed, the taking effect of which shall be made to depend upon any authority, except as provided in this Constitution.”   Can the language be any plainer?  How can a law that is not authorized be passed?

WE DECLARE, That all people are created equal.  Does there appear to be any qualification of equality based upon any individual characteristic?

How should enhanced penalty be justified?

Indiana has a constitutional protection which mandates “The penal code shall be founded on the

principles of reformation, and not of vindictive justice.”  How can enhanced punishment be considered anything other than revenge for harming a selected individual?

” Cruel and unusual punishments shall not be inflicted. All penalties shall be proportioned to the nature of the offense.”  Shall and shall not are considered absolute in law so how can there be any qualification to punishment other than proportioned to the nature of the offense?  Does there appear to be any exception to imposing punishment in excess of the compensation due to every victim executed in punishment of the offender because of the status of the victim?

We must demand adherence to the documents established to limit government and protect individual rights.  Individuals are all equal in value by the very nature of our humanity.  Why would elected officials under solemn Oath take the position that they have the right to determine selected individuals are of more value because of their differences?   As individuals we are never the same as anyone else for government to assume the unauthorized authority to discriminate and determine harm caused to one is greater than the same harm caused to another is not conscionable.

Unequal circumstances of existence are what make us individuals.  Individual rights are for all equally regardless of any differences associated with our existence.   How can government place a higher value on the life or property of one and not discriminate against all others?

http://iga.in.gov/legislative/2017/bills/house/1066

http://iga.in.gov/legislative/2017/bills/senate/336

http://iga.in.gov/legislative/2017/bills/house/1297

http://iga.in.gov/legislative/2017/bills/senate/439

http://iga.in.gov/legislative/2017/bills/house/1388

http://iga.in.gov/legislative/2017/bills/senate/270

http://iga.in.gov/legislative/2017/bills/house/1480

http://www.law.indiana.edu/uslawdocs/inconst/art-1.html#sec-25

http://codes.findlaw.com/in/title-1-general-provisions/in-code-sect-1-1-2-1.html

Bill of Rights Privacy vs. legislated DNA collection

For several sessions the Indiana General Assembly Members have introduced bills requiring DNA collection upon arrest.

SB 565 and HB 1015 in 2015 required every person arrested for a felony or as in the Senate bill  “ for burglary, residential entry, a crime of violence, or a sex offense; and (2) a child found to be a delinquent child for the commission of an act that, if committed by an adult, would be burglary, residential entry, a crime of violence, or a sex offense; to provide a DNA sample.”   Both bills provided for the expungement of a DNA sample if the person is acquitted of all felony charges, all felony charges are dismissed, or no charges have been filed after 30 days.   There was also a provision which required the person taking the DNA sample to inform the arrestee of the right to DNA expungement and to provide a form to be used.   In 2016 SB 191 and HB 1015 were introduced with identical language containing the expungement provision.

Indiana lawmakers have indicated the 2017 session will once again see a bill for the mandatory collection of DNA upon arrest for specified charges.  The DNA is then placed in a national database.  A major change this session makes it difficult to expunge DNA from the database.   Under the new proposed bill an individual would be allowed to remove their DNA from the national database only if they are acquitted of all charges.  Gone are the privileges of being allowed to have your DNA removed if all felony charges are dismissed or no charges have been filed after 30 days.

Black’s Law Dictionary 6th ed defines a constitutional right as “A right guaranteed to the citizens by the United States Constitution and state constitutions and so guaranteed as to prevent legislative interference therewith.”

Indiana lawmakers are required before entering into office to take a Constitutional Oath which is compulsory under Indiana Constitution Article 15 Section 4. “ Every person elected or appointed to any office under this Constitution, shall, before entering on the duties thereof, take an oath or affirmation, to support the Constitution of this State, and of the United States, and also an oath of office.”

Indiana Constitution Section 25:” No law shall be passed the taking effect of which shall be made to depend upon any authority, except as provided in this Constitution”.

Does an oath or affirmation to support the Constitution of this State include adherence to
Section 25?  Where does the provision exist for a law demanding DNA upon arrest absent warrant based upon probable cause?   Where does the provision exist which states you will only have your seized property returned if you are found not guilty?  Where is the provision which states government can determine you do not have the right to have your property returned if charges are dismissed or never filed?

Do the Constitutions of this State and the United States not provide for the protection of the individual right to be secure in our persons?  Do Section 11 and Amendment IV not mandate the government must search and seize only upon warrant issued through due process?  Is being arrested enough according to required standards for the government to demand DNA and provide it to a national database?  Does being given the privilege to have your DNA removed only upon acquittal meet the standards?      

Indiana Constitution “Section 11. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search or seizure, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.”

U.S. Constitution “Amendment IV The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The hierarchy of law governing Indiana is declared to be:  “ First. The Constitution of the United States and of this state.  Second. All statutes of the general assembly of the state in force and not inconsistent with such constitutions.  .  .”

Where does the law governing this state include the exception for a law which is inconsistent with the constitutions?   Where do the constitutions provide government the authority to justify the end by violating the means?  Does the sworn oath of our representatives allow them to justify violations of inalienable rights when those rights are explained in plain, ordinary language and declared protected by the constitutions against government legislation?

If we desire to retain our individual inalienable rights all rights must be protected against unauthorized government acts even those acts which may seem to have an acceptable goal. Individuals have a right to justice under the rule of law but that rule of law foundation is the constitutions.

 

 

Indiana Constitution

U.S. Constitution

http://www.indystar.com/story/news/crime/2016/12/06/dna-bill-would-keep-sample-system-even-if-charges-dismissed/95041516/

State Cooperation in Federal Gun Control determines Right to Bear Arms

What defines the individual right to self-protection? That would depend upon what an individual believes.  Some believe a constitutional right to be absolute with no government ability to legislate terms.  Others believe the government has the authority to determine the extent to which any individual right may be executed because of compelling government interest.

Today the meanings of rights have been so convoluted by unauthorized legislation and the interposition of judicial determination which seemingly legislate from the bench it is understandable why individuals would be confused.

The Oath of office for Indiana government agents is one which demands compliance with the law governing this state.  Indiana declares that Law to include: “The Constitution of the United States and of this state” as well as “All statutes of the United States in force, and relating to subjects over which congress has power to legislate for the states, and not inconsistent with the Constitution of the United States.

This Law of Indiana unambiguously recognizes that the federal government is only provided authority which is clearly stated in the U.S. Constitution and that such authority does not extend any further.   When the federal government passes anything which applies to the states it must depend upon the states to comply.  Usually compliance has been controlled through the “free money” given by the feds to implement such programs.  Federal gun laws have been no exception.  The government using funding to coerce compliance is the usual tactic.

Should individual rights or an Oath to uphold the Constitutions be invalid because the state is forced to cooperate with the federal government in gun law enforcement?   HB 1051 states that there is an individual right to bear arms which shall not be infringed thus emphasizing the Law of Indiana hierarchy.

The legislation claims “it is the intent of the general assembly in enacting this article to protect Indiana employees”.  . . .” from being directed, through federal executive orders, agency orders, statutes, laws, rules, or regulations enacted or promulgated after January 1, 2017, to  violate their oath of office and individual rights affirmed under the Second Amendment to the Constitution of the  United States and Article 1, Section 32 of the Constitution of Indiana”.   However there is no language in this bill providing Indiana employees with protection against the federal government defining what that protection will be and how such protection would be implemented by Indiana.

HB 1051 further explains in Chapter 1 “Legislative Statements”  “anticommandeering principles” and cites the United States Supreme Court in Printz v. United States, 11 521 U.S. 898 (1997) which held:  “The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program”. 

Chapter 2 simply defines “political subdivision” as having the meaning in current code IC 36-1-2-13.

Chapter 3 “Prohibitions” prohibits:  “Knowingly or intentionally participate in any way in the enforcement of a federal act, law, order, rule, or regulation issued, enacted, or promulgated after January 1, 2017, regarding a personal firearm, firearm accessory, or ammunition”.   State agents are further prohibited from the use of any assets or funds allocated by the state to engage in any prohibited gun related activity that aids the federal government in enforcement or investigation in connection with enforcement.

Chapter 4. “Penalties” a state or political subdivision employee or agent who violates this new law would “commit a Class B infraction”.    Any of the specified individuals who knowingly or intentionally violates and has a prior conviction or adjudication for violation “commits a Class A misdemeanor”.

Next HB 1051 applies penalties to the subdivision for adopting a rule, order, ordinance, or policy requiring violation of this code.  Violating subdivisions “ may not receive state grant funds” with the state grant funds denied for the fiscal year following the year final judicial determination is made.

While the bill professes the intent is to protect Indiana employees it punishes the individual actor under specified Code for non-compliance.    The political entity will be controlled by withholding funds but the bill fails to elaborate what actions Indiana will take to protect either the individual or the political subdivision from federal retaliation.  Federal retaliation would likely take the form of lost funding from the federal government which has always been an argument against any nullification by some who believe we should always get our share of the “free” federal money.

While HB 1051 would set a standard and serve notice to the federal government to keep their hands off our Right to bear arms Indiana must be prepared for the reaction of both lost funding to subdivisions and the public who may not understand this bill is to protect the individual from the unauthorized acts of the federal government.

http://iga.in.gov/legislative/2017/bills/house/1051#document-9a13f2b8

http://codes.findlaw.com/in/title-1-general-provisions/in-code-sect-1-1-2-1.html

http://iga.in.gov/legislative/laws/const/

Klosinski: Religion Removed from Indiana Government Marriage Contract

What is marriage in Indiana?  This sounds simple, and it is, but there is great misunderstanding about what exactly government marriage means.  Today the meaning of marriage to the state has evolved into nothing more than a contract between two individuals with the contents of that contract controlled by Indiana to provide privileges, exemptions, immunities and benefits which are not equally available to every other individual in the state.

HB 1163 is described to; “ Eliminates the requirements that: (1) individuals obtain a marriage license before being married; (2) a marriage be solemnized by an individual specified by state law; and (3) a marriage license be filed with a circuit court clerk and the state department of health.   Provides for marriage by marriage contract by any two individuals who are competent to contract in Indiana or otherwise permitted to marry in Indiana.”

The Indiana Constitution contains no article defining what marriage is and authority is specifically denied to Indiana by ”Section 23. The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens.”  We are all guaranteed protection of our individual right to free association including with whom we desire to share our lives.

Indiana has controlled who an individual may marry by Code now HB 1163 proposes major changes to sections of current Indiana family law.  Repealed is: ”Same sex marriages prohibited Sec. 1. (a) Only a female may marry a male. Only a male may marry a female. (b) A marriage between persons of the same gender is void in Indiana even if the marriage is lawful in the place where it is solemnized.” 

Added is a lengthy section Civil Recognition of Marriage which specifies what makes a marriage legal by Indiana standards.  “Civil Recognition of Marriage Sec. 1. A marriage is legally created and shall be recognized for all legal purposes in Indiana if: (1) the manner in which the marriage is entered into complies with the law governing marriage in Indiana that is in force at the time of the marriage’s formation; and (2) under the law governing marriage in Indiana that is in  force at the time of the marriage’s formation, the parties to the marriage have the general capacity to enter into a contract in Indiana or are otherwise permitted by Indiana law to marry.”  It also allows additional procedures not required by this article to be part of the ceremony.

Next it “does not prohibit a religious organization from imposing additional procedures or other requirements for individuals to be considered married for the religious purposes of the religious organization”.  Exactly where does the Constitution state Indiana would have the authority to prohibit any religion from imposing religious requirements to sanctify a marriage?

The Code is repealed specifying “Authority to Solemnize Marriages” which includes a member of the clergy, such as a minister, priest, bishop, archbishop or rabbi” as well as other specified religious and government agent individuals. This would mean that a marriage contract is the only recognition of marriage considered by Indiana. A religious marriage ceremony would not be recognized by the government as marriage for legal purposes. This would end the dispute of religions being forced to perform marriages unless sanctioned by their religious doctrine.

Only a civil marriage contract drafted and executed under the laws of Indiana would be recognized in Indiana for Indiana residents.  Under a chapter covering “Formation of Marriage”  two individuals who are not prohibited from marrying for a reason set forth in this article may “enter into a marriage contract in conformity with this article”.  The marriage contract must be in writing, individuals must be competent to enter into a contract. The contract must be signed in the presence of each other and two witnesses must sign and attest under penalties of perjury to specified facts.

The marriage contract is conditional upon there being no provisions which Indiana determines would void the contract.  These conditions are listed in the New Chapter “Void Marriage Contract Provisions; Modifications of Marriage Contracts”.  Also a New Chapter addresses “Voidable Marriage Contract Provisions”.

In Indiana, marriage is as it always has been nothing more than a contract between two individuals and the state with the state controlling from formation to dissolution. Except for the necessary repealed language to correct the definition of marriage the remainder of the bill adds to code necessary requirements on contract formation and inclusion of mandatory requirements leaving the majority of the Marriage Code intact.

HB 1163 relieves the individuals from marrying only another individual approved by Indiana, applying for a state license, paying certain fees and recording the license. Instead, individuals have permission to marry through a marriage contract.  This state approved contract can then be: ”submitted, in place of a marriage license, to an entity requesting proof of marriage.” This marriage contract will not come out of thin air, someone must create it being certain it is in full compliance with the laws mandated by Indiana.  It then must be executed according to Indiana requirements.

https://iga.in.gov/legislative/2017/bills/house/1163

http://iga.in.gov/legislative/laws/const/

Klosinski: Why Is Constitutional Carry a Question?

Here we go again. For a number of years bills have been introduced by members of the General Assembly regarding guns and the privilege of who may own them under Indiana Law.

Once again there is an attempt to provide for what is called Constitutional Carry of firearms.

Now there is no actual bill(s) with language explaining anything as yet. However, that does not stop news articles on the harm such a “privilege” will cause to society. Past bills have been introduced covering firearm ownership and medical records, handgun license repeal, possession of firearms on state property, and BMV documentation of firearm ownership.

General Assembly firearm related actions have neglected to give consideration to the limited powers and the mandates under which each Representative and Senator has sworn to operate.

What exactly are duties of these elected persons? Even though campaigns can find candidates making promises to one group or another depending upon the voters, does a Representative or Senator have the authority to grant campaign promises? No, they do not unless those promises are in full compliance with the Constitution(s).

When a member is elected the first requirement before entering into office is to take a Constitutional Oath which states:

“Every person elected or appointed to any office under this Constitution, shall, before entering on the duties thereof, take an oath or affirmation, to support the Constitution of this State, and of the United States, and also an oath of office. (Indiana Constitution Article 15 Section 4)

Black’s Law Dictionary 6th ed. defines a constitutional right as

“A right guaranteed to the citizens by the United States Constitution and state constitutions and so guaranteed as to prevent legislative interference therewith.”

When speaking of Constitutional Carry what does the Bill of Rights in the Indiana Constitution dictate?

“Section 32. The people shall have a right to bear arms, for the defense of themselves and the State.”

What would the ordinary individual believe the meaning of having the right to bear arms for the defense of themselves mean? Does it mean individuals have the right to self-protection only if they obtain as currently required a license to carry? No. Do you see any such condition on this right? No. And yet Indiana has many conditions placed upon the right to bear arms for the defense of individuals through legislative interference known as laws.

“Section 1. WE DECLARE, That all people are created equal; that they are endowed by their CREATOR with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness; that all power is inherent in the people; and that all free governments are, and of right ought to be, founded on their authority, and instituted for their peace, safety, and well-being. For the advancement of these ends, the people have, at all times, an indefeasible right to alter and reform their government.”

Are all people created equal and endowed with inalienable rights? Does every individual have the right to life? Is our Indiana government not founded upon the authority of the individuals residing within its borders? Is our Indiana government not founded to protect the peace, safety, and well-being of the individuals within its borders? Is it not the right of the individual to determine their self-protection without permission from the government?

Section 25:” No law shall be passed the taking effect of which shall be made to depend upon passed the taking effect of which shall be made to depend upon any authority, except as provided in this Constitution”.

What would prompt a Representative or Senator to introduce or approve a bill which has no authority to be passed? If the authority to pass legislation over the right of the people to bear arms for the defense of themselves is contained within the Constitution where is that authority? Does the sworn oath to uphold the Constitutions have no meaning?

Why do I ask all of these questions?

Because it appears individuals have lost the desire to ensure government does not violate the terms of a written contract upon which the life of every individual depends, nor do the General Assembly Members have the integrity to honor their Constitutional oath. Individual Constitutional Rights should never be made to depend upon anything other than the Constitutions which guarantee no government interference.

A constitutional right can only be changed or amended through the procedure found within the constitution through the direct vote by the people. A right being subject to laws is not a right, it is a privilege. We have allowed our rights to become alterable at will by the lobby groups seeking more power than the government should possess. Those elected to protect the minority of the individual, who is the only entity protected by theses constitutions, must be the exclusive consideration legislators.

Hoosiers: There Is a Constitutional Vote on your Ballot – Right to Hunt and Fish

On November 8, Hoosiers will find on their ballot Public Question 1. It is a constitutional amendment to alter the Indiana Bill of Rights. Question 1 is described as adding a constitutional right to the Indiana Constitution to permit hunting, fishing, and trapping “subject only to the laws prescribed by the General Assembly and rules prescribed by virtue of the authority of the General Assembly.” In my short prior review, I stated such an amendment was unnecessary as the Indiana Constitution already protects these rights.

The Bill of Rights contains no other section requiring any other right be subject to the laws of the General Assembly or other authorities of the General Assembly. When did a right become alterable by the government?

This is not a constitutional amendment. If Hoosiers grant the General Assembly and their authority agencies the power to change terms of a constitutional document they are violating the Constitution itself.

The constitutional protections of individual rights are used to determine the constitutional validity of any other legislation. When an amendment is set up such as this one to self-determine the laws there are no provisions limiting government control. This amendment is self-evolving and not requiring the approval of a constitutional amendment. Any subsequent changes the power to change the provisions of this “Right” rests with the General Assembly and the agencies, not the people.

My objection to the language is that there is specific control granted to the government when there can be none if it is a right. The qualifications of “subject only to the laws prescribed by the General Assembly and rules prescribed by virtue of the authority of the General Assembly” place the government in control meaning this is a privilege, not a right. Not only does the General Assembly have direct control but also any agencies they have prescribed with powers over wildlife can change any requirements. No inclusion in eliminating the licensing or any other requirement is contained and given the inclusive specific language of being “subject only to” it appears there is no intent to remove any regulations.

Do we want the Constitution a document prescribed to protect existing rights to be altered to include a privilege?

I would say no because then all provisions of protection may be viewed as being able to be amended to include such government control of a right making it a privilege.

The ballot title is as follows:

Public Question #1
Shall the Constitution of the State of Indiana be amended by adding a Section 39 to Article 1 to provide that the right to hunt, fish, and harvest wildlife shall be forever preserved for the public good, subject only to the laws prescribed by the General Assembly and rules prescribed by virtue of the authority of the General Assembly to:

(1) promote wildlife conservation and management; and
(2) preserve the future of hunting and fishing?”

The ballot summary is as follows:

“Provides that the right to hunt, fish, and harvest wildlife is a valued part of Indiana’s heritage and shall be forever preserved for the public good. Provides that the people have a right, which includes the right to use traditional methods, to hunt, fish, and harvest wildlife, subject only to the laws prescribed by the general assembly and rules prescribed by virtue of the authority of the general assembly to: (1) promote wildlife conservation and management; and (2) preserve the future of hunting and fishing. Provides that hunting and fishing are the preferred means of managing and controlling wildlife. Provides that this constitutional amendment does not limit the application of any laws relating to trespass or property rights. This proposed amendment has been agreed to by one general assembly.”

Constitutional changes

See also: Article 1, Indiana Constitution

Public Question 1 would add a Section 39 to Article I of the Indiana Constitution. The following text would be added by the proposed measure’s approval:

Section 39.
(a) The right to hunt, fish, and harvest wildlife:

(1) is a valued part of Indiana’s heritage; and
(2) shall be forever preserved for the public good.
(b) The people have a right, which includes the right to use traditional methods, to hunt, fish, and harvest wildlife, subject only to the laws prescribed by the General Assembly and rules prescribed by virtue of the authority of the General Assembly to:

(1) promote wildlife conservation and management; and
(2) preserve the future of hunting and fishing.
(c) Hunting and fishing shall be a preferred means of managing and controlling wildlife.
(d) This section shall not be construed to limit the application of any provision of law relating to trespass or property rights.

Klosinski: Medical Records Disclosure & The Right to Bear Arms

HB 1494

Going nowhere?  Why?

 

Bill HB 1494 has been proposed to address the relationship between individuals and their medical providers, prohibiting the disclosure to government entities of certain information, relating to a patient’s ownership of a firearm. HB 1494 appears to be of minimal concern to elected Members, and of even less concern to the media and endangered Hoosiers.

 

Status thus far:

01/14/2015 Authored by Representative Judy

01/14/2015 Coauthored by Representatives Lucas, VanNatter and Morris

01/14/2015 First Reading:  referred to Committee on Public Policy

 

Why should such a bill be necessary?

Is it because government entities are already exercising the power?

What right does a physician or medical records custodian have to require a patient to disclose gun ownership information? What right does a political subdivision or any government have to require a practitioner to inquire whether a patient owns a firearm? What right does any government have to obtain absent due process to any private confidential doctor-patient records?

HB 1494 adds a new section to the code. The need to define the limits of disclosure should indicate the importance of such legislation. This bill would prohibit a practitioner or medical records custodian from disclosing information pertaining to a patient’s ownership or access to a firearm, to government entities at all levels. It also prohibits a political subdivision or regulating board from requiring the practitioner to inquire and document if a patient owns a firearm and from notifying any government entity of the identity of any patient solely due to ownership of a firearm.

Further prohibition includes: “Use an electronic medical record program that requires, in order to complete and save a medical record, entry of data regarding whether a patient:  owns a firearm; has access to a firearm; or  lives in a home containing a firearm.” 

Once again, I find myself wondering why, since both Amendment 4 of the U.S. Constitution and Indiana Constitution: “Section 11. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search or seizure, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.” This bill is not being given the import due to bring current government policy into compliance with the Constitution(s).

I would propose that this bill contain a definition such as: “Medical records has the meaning of papers and effects secure against unreasonable search and seizure and as such are a protected Right under the Indiana state Constitution Section 11 and the U.S. Constitution Amendment 4.” But, such a definition would likely be opposed by government entities seeking easy access to gun ownership.