Category Archives: Law

Right to Protest

In light of recent events, Bandolero believes we should take a look at the First Amendment of the Constitution of the United States of America.

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

It’s amazing how much can be said with so few words!

It has lately been repeatedly said that protesters were exercising their First Amendment rights. Apparently, it is asserted that a “protest” is covered by “freedom of speech”. Bandolero doesn’t see that. A protest seems more appropriately to fall under “petition the Government for a redress of grievances”. In either case, Bandolero cannot find any right to pillage and vandalize property, nor any right to stop traffic, nor any right to throw water bottles and other projectiles at police, nor any right to assault and batter people. Nevertheless, all of these are being embraced as forms of “protest” protected by the First Amendment. It appears that they have overlooked the word “peaceably”. Or, perhaps, they have re-defined the word “peaceably” so that all of those activities are now considered to be peaceful. Bandolero shakes his head in dismay and disappointment. No, they are not peaceful.

Bandolero wonders if there’s any difference between a “protest” and a “demonstration”. In the 1960’s, large gatherings and marches were usually referred to as demonstrations; participants were demonstrators. Their purpose was to publicize things the demonstrators considered to be violations of the rights of, or injustices committed against, certain people, usually black people although native Americans got quite a number of demonstrations. Generally, the demonstrations were done “peaceably”, and served to petition the government for redress of grievances. The recent “protests”, on the other hand, have served to display outrage and express the sentiment, “I’m not going to take it any more!” That may amount to a form of petition for redress. However, there is no Constitutional right to petition for redress by breaking windows, spraying graffiti, throwing hard objects, looting, or assaulting; nor are such activities covered by freedom of speech. They aren’t speech, they are crimes; although, listening to some of the protesters, they seem to be asserting that the commission of a crime is a form of speech. Hmm, Bandolero may need to review his legal history, as he can’t recall whether burning draft cards and/or the flag was finally decided to be a form of speech protected by the First Amendment! Still, those would be victimless crimes, at least! We heard several talking heads assert that the destruction of a few small businesses and the beatings of a few innocent civilians was a small price to pay in relation to the bigger picture of protesting systemic racism in America. As if they never heard the phrase “slippery slope”.

Recently, large noisy rancorous in-your-face antagonistic car-bombing store-looting gatherings of people have been referred to as protests rather than as demonstrations; the talking heads being quick to assert that the violence was insignificant. It seems that the purpose of this shift in terminology serves the purpose of bringing uncivil activities within the scope of what is protected by the First Amendment. This is both unfortunate and dangerous. Nevertheless, it can be seen as an element of the left’s strategy to expand the First Amendment and bring illegal activities within its scope. Bandolero, for one, will continue to oppose this strategy. The First Amendment, and all provisions of the Constitution, must be preserved and protected, not re-defined into meaningless slogans to fit the political correctness of the moment.

Kudos to Kansas

On June 3, 2020, the Kansas Legislature convened in a special session to pass a bipartisan version of the Emergency Powers resolution that was previously sent to Governor Laura Kelly.  The new version, House Bill 2054, prevents the Governor from using emergency powers to seize ammunition or limit the sale of firearms during a declared state of emergency, including for Covid-19.  Governor Kelly said she will support the measure.

Other states and municipalities have taken advantage of “emergency powers” to limit or prohibit sales of firearms and ammunition, brushing aside the Second Amendment of the Constitution. If that’s deemed permissible, then it would be permissible to use “emergency powers” to nullify any other Constitutional guarantees. In fact, it has been used to supersede the First Amendment which prohibits the free exercise of religion. Churches have been prohibited from holding services. It appears that some leaders believe that “emergency powers” can nullify both the First and Second Amendments, without consulting, or obtaining the consent of, We The People.

We are in dangerous times. Be assured that Bandolero will continue to champion the Constitution, its Amendments, and the Bill of Rights. These fundamental precepts of our country were never intended to apply only when convenient, nor without sacrifice. Thousands have sacrificed their lives to protect them and to assure that they prevail over all who would attack or subvert them. Have the people become so complacent that they are no longer willing to stand in support of them? Not El Bandolero! He will always stand in support of our precious rights!

 

El Hon. Juez Kavanaugh

El Bandolero was nearly unable to constrain himself while watching el Circo Judicial del Senado de los Estados Unidos the other day. Instead of painting a sign and rushing to the capitol to protest, we have decided to author a rational analysis of the event. At the outset, one is faced with the question of the applicable standard of proof; whether it’s beyond a reasonable doubt, clear and convincing evidence, preponderance of the evidence, or something else that doesn’t have a legal definition (i.e. gut feeling). The next question is who has the burden of proof. Is the burden on the accuser to prove guilt? Or is the burden on the accused to prove innocence? Since it wasn’t a criminal proceeding, Constitutional presumption of innocence with the burden on the accuser to overcome it beyond a reasonable doubt wouldn’t necessarily apply. But, should we turn a blind eye to the principles underlying those precepts?

We could write a lengthy manuscript on the subject, but we’ll just skip ahead and say we concluded that the “preponderance of the evidence” standard should be applied, and found the evidence to rest in favor of the Judge. To reach a verdict in this case, it isn’t necessary to conclude with 100% certainty that “he’s lying” or “she’s lying”. In the absence of a video of an event, it’s rare to reach 100% objective certainty about whose version of an event is accurate. Note the the word “objective” in that sentence. “Objective” means not infused with bias, predisposition or agenda. When stripped of bias, predisposition and agenda, the preponderance of objective and reliable (e.g. credible) evidence left the scales tipped in favor of Judge Kavanaugh.

We should add that we felt a 35 year uncontroverted record of unblemished sterling conduct and reputation was entitled to some weight. Some would argue that no amount of good deeds can erase even one assault such as Ms. Ford described, nor erase lying about it if one knew he was guilty. But that argument has no application to the case unless one presupposes a “guilty verdict” notwithstanding the preponderance of the evidence.

Until objective and reliable evidence to the contrary is presented that tips the preponderance the other way, El Bandolero must support the appointment of Judge Kavanaugh to the Supreme Court of the United States. It remains to be seen what the FBI does or doesn’t come up with in its supplemental investigation. This, however, presents a whole ‘nuther question about whether it’s possible to get objective reliable evidence from the FBI. The Senators repeatedly pointed out that the FBI does not draw conclusions, it only gathers the evidence and reports it. The first image this brought to El Bandolero’s mind was James Comey’s press conference where he announced the FBI’s conclusion that the evidence did not warrant charges against a certain high ranking official who knowingly used a private personal server to send emails containing confidential government information.