Wednesday, January 16, 2008

Who Shall Guard the Guards?

[I just received this essay from Mike Vanderboegh. It is pasted here as a Guest Editorial complete and unedited except for minor formatting.]

"Quis Custodiet Ipsos Custodes?" -- Decimus Iunius Iuvenalis, Juvenal's Satires, 6.347-48.

Lisa Simpson: "If you're the police, who will police the police?"
Homer: "I dunno, Coast Guard?"
We've been here before. A Republican administration, mildly allergic to the Second Amendment, is about to give way to a virulently anti-gun Democrat regime. The lying, arrogant and armed bureaucrats of the Bureau of Alcohol, Tobacco and Firearms are eager to curry favor and lick the boots of their incoming masters. The last time this led to Waco and the deaths of 85 innocent people. This time I fear it will lead to something worse.

David Olofson is not a household name, even in the community of gun rights activists. He should be. While gunnies have been worried about the Bush administration's petty treasons to the Second Amendment in the matters of the Heller D.C. gun ban case and the appointment of the new anti-gun director of the ATF, Michael J. Sullivan, the decision in the case of US v. Olofson in the United States District Court for the Eastern District of Wisconsin has escaped much attention. Forget Heller. It is, in the grand scheme of things unimportant, trumped as it is by endemic government misconduct. Whether the Supreme Court decides this summer if we are citizens or serfs is immaterial if the abuses of power, constitutional rule of law and even common sense which are evident in the Olofson case are left to stand unchallenged.

"A government is a body of people, usually, notably ungoverned."
-- Shepherd Book, Firefly, Episode Nine, "War Stories," 2002.
Len Savage, firearms expert and owner of Historic Arms testified at the Olofson trial. Here is his rendition of the facts of the case:

Mr. Olofson, a Drill Instructor in the National Guard, was asked by Robert Kiernicki to teach him how to shoot a firearm. Olofson did and from time to time would let Mr. Kiernicki borrow his oldest AR-15 , go to a public range and target practice. . . (O)n his third time at the range after 120 rounds down range the rifle sputtered three times and jammed. The Law enforcement on the range swept in... The rifle in question seized now by the ATF; It was sent to Firearm Technology Branch (FTB), the testing Arm of the BATFE. They examined and test fired the rifle; then declared it to be "just a rifle". You would think it would all be resolved at this point, this was merely the beginning. The Special Agent in Charge Jody Keeku asked FTB to re-test the firearm and this time use soft primered commercial ammunition.

FTB has no standardized testing procedures, in fact it has no written procedures at all for testing firearms. They had no standard to stick to, and gleefully tried again. The results this time..."a Machinegun". ATF with a self admitted 50% error rate pursued an indictment and Mr. Olofson was charged with "Unlawful transfer of a machinegun". Not possession, not even Robert Kiernicki was charged with possession (who actually possessed the rifle), though the ATF paid Mr. Kiernicki "an undisclosed amount of money" to testify against Mr. Olofson at trial.

At the same time Mr. Olofson was being charged with "Unlawful Transfer" because the rifle malfunctioned and had a M-16 trigger, disconnector, and hammer; calling it an AR-15 with M-16 trigger parts (not the parts that make a machinegun). The ATF removed "a machinegun" from the NFRTR or NFA registry, claiming it was an AR-15 with M-16 parts, therefore NOT "a machinegun". I have the documents, I can prove this. The court was never shown this information. When Mr. Olofson's Attorneys requested the court compel the ATF to provide this and other documents that proved his innocence to the court. The ATF Chief Counsel's Office told the court the documents contained tax information (federal excise tax stamp for $200) and the court was prohibited from seeing them. All documents were kept secret from the Honorable Judge Clevert and the rest of the court. Even the letter from the ATF to the manufacturer of Mr. Olofson's rifle from 1986, which mandated a "safety recall" due to the rifle going "full auto" if it malfunctioned. ATF Chief Counsel told AUSA Haanstad, who then told the court "The Court will have take our word, that the documents in question contain tax information and contain no exculpatory evidence".

It gets even worse... AUSA Haanstad claimed the law does not exempt a malfunction. He claims that it states "any weapon that shoots more than once without manual reloading, per function of the trigger is a machinegun". To clarify when I was on the stand, I asked him "Are you saying if I take my Great Granddaddy's double barrel out and I pull one trigger and both barrels go off, its a machinegun?". He went back to the law (United States Code, Section 5845 (b)), and claims "any weapon that shoots..."
Mr. Savage concludes with this observation:

If your semiautomatic rifle breaks or malfunctions your are now subject to prosecution. That is now a sad FACT. I guess we know now what Senator Kennedy meant when he said he looked forward to working with Mike Sullivan on Gun control issues, after his committee approved him for full Senate vote. To those in the sporting culture who have derided "black guns" and so called "assault weapons"; Your double barreled shotgun is now next up to be seized and you could possibly be prosecuted if the ATF can get it to "fire more than once". Hey, but don't worry. The people testing it have no procedures in writing and the testing will be in secret. Also if you know of information that proves YOUR innocence, maybe the ATF won't claim that it's tax information at your trial and prevent YOUR judge from viewing it. Are you next up on the menu?
(Source: http://redstradingpost.blogspot.com/2008/01/len-savage-duck-hunters-and-sportsman.html)

David Olofson was convicted, despite the facts presented by the defense, on the words of a paid informer and an assistant United States prosecutor who refused to release exculpatory "Brady" material (something he is required to do by Supreme Court decision). There is chance that, if Mr. Olofson is finally able to sustain the costs of an appeal, that this egregious case of ATF and Justice Department misconduct will be overturned. But don't bet on it. What you should be certain of is this: We are now going back, if we ever left it, to the time of Waco Rules. You remember what they are, surely? "We are the avenging angels of the ATF, representing the god-on-earth Imperial Federal Government. If you resist us, we will crush you. If you shoot back at us, we and our big brothers of the FBI will kill you -- we will burn down your house, your church, your family and all you hold dear, AND WE WILL NOT BE HELD ACCOUNTABLE." Those my friends, are Waco Rules. They can do anything you can't stop them from doing.

You see, it doesn't matter what the Supreme Court decides if we have bureaucratic criminals enforcing the law to suit themselves and the purposes of their antigun financial masters, the Democrat-controlled Congress. Do you really think that Harry Reid and Nancy Pelosi will undertake oversight hearings on ATF abuses? President Hillary, perhaps? This is as likely as George Bush seriously enforcing the immigration laws. The ATF understands this. You should too.

Sheriff Johnny Behan: "You're under arrest!"
Wyatt Earp: "I don't think I'll let you arrest me today, Johnny."
Tombstone, 1993.

Of course, like everything else, the Olofson case is subject to the immutable Law of Unintended Consequences. A reasonable man, observing the outcome of Olofson's case might conclude that there is no point in an honest fellow playing the game of an abusive regime that flaunts the law and manipulates the courts. A reasonable man might conclude that, if he is approached by ATF agents, he should probably consider them as little better than unconstitutional gangsters operating under the fiction of legal pretense. A reasonable man, realizing the system is rigged against him, that the rule of law has broken down and not wishing to go to federal prison for a crime he did not commit, might decide that the best thing to do is refuse to be the victim, right there and then. And you may infer from that whatever you wish.

The Olofson case confirms that we are still living in the time of Waco Rules, so let's not kid ourselves over the maybes of Heller. Supreme Court decisions don't count for spit in the wind to these people. But if the law no longer protects us, it no longer protects them either. Which is something they probably haven't considered, but should, given the Law of Unintended Consequences.

Mike Vanderboegh
PO Box 926
Pinson, AL 35126
GeorgeMason1776@aol.com

10 comments:

Anonymous said...

I'd like to nominated Gregory J. Hannstad for this month's "Worst Person in the World."

Sentenza said...

The BATFE, like any bureaucracy, has to justify its existence.

By "catching dangerous criminals manufacturing machine guns" they are doing so, and thus justifying their existence to Congress.

Anonymous said...

Now you know why Wayne Fincher did what he did the way he did it.

What real choice did he have?

Anonymous said...

they don't want another Waco

so guys with any charisma that could become leaders are removed from the equation: carefully and with legal process

we need to elect congressmen that will change the law

as simple as that

we need to do this like MLK did it: not "mano un mano" salivating with revenge

Anonymous said...

"we need to elect congressmen that will change the law"

That is like saying that you need to just bet more money and you will eventually beat the house in a casino.

Horsecrap, neither approach will work.

David Codrea said...

Ultimately, MLK and the laws passed under the guise of equal rights served the interests of a stronger state.

Anonymous said...

"Anonymous said... they don't want another Waco"

Perhaps not. But institutional memory in the ATF is often overcome by its arrogant cowboy culture. When you get away with misdeeds for years and years, you tend to believe you will never be called to account. Only people ignorant of their own history believe this, but then the ATF is filled with such men and women. Indeed, in the ATF, if you sin you are rewarded. A glance at the career of "Waco Jim" Cavanaugh is proof enough of that. Try watching Mike McNulty's documentary, Waco: The Rules of Engagement. The guy was in on the planning for that stupid and disastrous 28 February 93 raid, then perjured himself in front of Congress, but hey, it won him a promotion so what's a little official lying among guncops?

"so guys with any charisma that could become leaders are removed from the equation:"

I haven't noticed any targeting of guys for their charisma or leadership. The ATF, like any other cowardly pack animals (the definition of "Government bureaucrat"), only go after the weak, the resource-poor, the politically unconnected.


"carefully and with legal process"

Well just how "legal" is what we are talking about, isn't it? The problem illustrated by Olofson is that the corrosive effect of government lawlessness is reaching critical mass, both in the sense of failing to enforce the law (a la illegal immigration) and in the official breaking of the law under color of law. My point is that of of Sir Thomas More in A Man for All Seasons:


William Roper: So, now you give the Devil the benefit of law!
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I'd cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!



If the process is not reversed, the destruction of the constitutional rule of war will engulf all of us, thick-headed ATF agents and predatory federal prosecutors included. Unfortunately they are too arrogant and stupid to see it.


"we need to elect congressmen that will change the law as simple as that"

And from what party do you see this congressional deliverance coming? Is gunowners' failure to engage in political struggle the problem? Gunowners are far more politically active than other sub-groups. What has it gotten us since we rose up and put the GOP back in power in 1994? Did they roll back the AWB in 1995 like they promised? Have they restrained the ATF with congressional oversight in the intervening years? The point is that the erosion of the constitutional rule of law makes even politics moot.

"we need to do this like MLK did it: not 'mano un mano'"

Aha. Yes. Well. Having tried to get gunnies to do anything collective flies in the face of their individuality and natural reluctance to demonstrate in public. I know, I've tried for 15 years. Herding cats and chickens simultaneously is easier to accomplish. As far as "man to man", I am merely pointing out that the illegal ATF conduct such as evidenced in the Olofson case is almost guaranteeing it. When it happens, having picked on the wrong victim, the ATF agents will be terminally surprised. My point is that the rest of us should not be surprised.

"salivating with revenge"

Is that how you see my piece? There is another scene in A Man for All Seasons:

Cromwell: Yet how can this be? Because this silence betokened, nay, this silence was, not silence at all, but most eloquent denial!

Sir Thomas More: Not so. Not so, Master Secretary. The maxim is "Qui tacet consentiret": the maxim of the law is "Silence gives consent". If therefore you wish to construe what my silence betokened, you must construe that I consented, not that I denied.



I will NOT consent to such official misdeeds as represented in the Olofson case and I will not be silent so others may wrongly infer my consent. I will speak, until the moment when tyranny convinces me that speech is useless. But I am not "salivating with revenge." I am merely a free man who intends to remain free. I have a family, a wife and three kids -- a son and two daughters. I want to live to see my grandkids grow up -- but only in a free country. And I happen to think that there are still enough free men and women like me in this country to ensure that if they are mobilized. My writings are like the Revolutionary War flag's rattlesnake: "Don't tread on me." If more citizens "rattled" in warning, we wouldn't be where we are today, with innocent men like Olofson wrongfully headed to federal prison. Do you really think freedom is free, or convenient, or peaceably obtained and defended?

Mike Vanderboegh

Anonymous said...

Silly me.

In the above response I wrote:

"destruction of the constitutional rule of war"

meaning, of course, "rule of law."

I'm also working on a piece about military law and how it applies to militias. More evidence that I benefit from a good editor, which I don't have.

Anonymous said...

One other thing about the political process and MLK, from an email I wrote to a fellow gunnie this morning:

"Everyone talks a great deal about Martrin Luther King's campaign of non-violence, but it wasn't until the Deacons for Defense and Justice raised the prospect of defensive violence and then the Black Panthers and the urban riots raised the specter of offensive violence that the federal government got in gear passing and enforcing the civil rights laws.

As for me, I am broke, on disability with congestive heart failure, and all I can afford to do at present is write. So writing on I shall go until the door is bashed in, when I intend to sell myself as dearly as possible. I would make a bad prisoner and the country needs the example of a few martyrs to remind them what they are supposed to be about."

Anonymous said...

Mike, it seems we have a whole lot in common. I do not expect to see my grandchildren grown, but I will live, damaged as I am a free man. I will die that way, also, though that may be at the hands of other men not so enamored of manhood or liberty.