Pagans MC and the 2nd Amendment

Volokh comments on an interesting case that shows something of the limits of our legal approach to the world.  American laws are based on a model drawn up by businessmen and lawyers, who have a certain way of approaching the world in which business-style arrangements are assumed to be good models for thinking about other social arrangements.  Thus, we have John Locke's concept of a "social contract," which substitutes a business model for the actual facts about how political bonds are formed and maintained; and we have the modern concept of marriage as a sort-of contract rather than a kinship bond, the limits of which we've discussed at length here.

Another limitation is demonstrated by the current case.  The President of a chapter of the Pagans Motorcycle Club (PMC) is a convicted felon who is, therefore, denied exercise of second amendment rights.  Now, he lives in a violent world in which he might come into conflict with the Hell's Angels Motorcycle Club (HAMC), which has been trying to push the PMC out of some of its traditional territory, and so he feels (with some justice!) that he needs protection.

Many men in a situation where the law was putting their lives at risk -- and not merely outlaw bikers! -- would simply have thumbed their noses at the law and done what they felt they had to do.  Our chapter President, however, actually obeyed the law in spite of his felonious past:  he just asked that members of his club who were able to obtain lawful concealed weapons permits do so, and then carry firearms when with him on club business in order to protect him.

The court has held that those club members who did this -- who, remember, were able to pass the criminal background checks required for them to obtain legitimate concealed weapon permits -- broke Federal law.  The reason the court believes this is true is that it accepts the government's argument that the club members were "employed" by the chapter President.  The club members appealed the conviction on the grounds that, actually, they weren't employed by the President at all:  he didn't pay them, for one thing; there was no contract; there were no benefits; and they certainly didn't conceive of it as an employer-employee relationship.  This is because it wasn't an employer-employee relationship!  They weren't his employees, but members of a club.

I frankly think that PMC is in the right here, and the government in the wrong.  The government wants to act on the presumption that PMC is an organized criminal group, but it hasn't proven that.  The government's argument is that 'employed' is a word with several senses, and one of those senses is 'used for a purpose'; but, while that is in some sense true, it's nonsense as an argument in this case.  It's clear that isn't what the statute controls.  It controls employment relationships.

The reason this law doesn't prevent what the government would like to prevent here is that the law was written by people who brought these contract-type assumptions to the problem.  PMC and HAMC and the others are not like corporations (even if, as sometimes happens, they incorporate in order to register trademarks and such).  Their fundamental ethic is not capitalist.  They don't live in the same world as the lawyers and businessmen who wrote the law.  A law built around contracts, employers and employees, and so forth, is naturally irrelevant to what these motorcycle clubs are doing.

What you are dealing with in PMC is the Jomsvikings.  They are a warrior brotherhood bound by a code that separates them from the rest of American society, and which is enforced outside the law by systems of honor backed by violence and threats of violence.

The existence of such an order within American society may be a good thing or a bad thing, depending on how it is used and for what purpose.  My reading on these kinds of clubs is that they are usually a mixture of good and bad.  The old war-band ethic has a lot to recommend it, and some men may find it to be the order that lets them structure a life worth living.

You can see a lot of the mixture of good and bad in this old documentary.  (There are nine parts; watch for Jerry Garcia playing a HAMC wedding, which is conducted on terms that are surely unenforcable in any court -- a fact that might give the lie to the idea that marriage is a contract, since if it were, you could enter into a contract on such terms.)  However you shake out on the idea of good and bad, though, what should be clear to everyone is this:  what they are doing has nothing to do with laws based on contracts and employment.  They're doing something very different from any of that.

26 comments:

Texan99 said...

The state has got itself into some deep waters there. The law that prevents the individual felon from carrying a gun is pretty straightforward. I take it the law also reads that a convicted felon can't employ people to carry guns on his behalf. No one was dumb enough, though, to try to include language prohibiting a felon from having anyone personally devoted to him who made a habit of carrying a gun in his presence. What they're probably wishing they could do is prove a conspiracy, but a conspiracy to what? Carry guns? They'd have to catch this guy's friends doing something illegal with the guns.

I've believed since very early in my legal career that the law was pretty good for addressing commercial transactions and pretty rotten at most else. People who try to resolve their personal conflicts by recourse to the law are almost always bitterly disappointed.

Grim said...

I agree with everything you just said.

The state has tried to prove MCs guilty of being criminal organizations using RICO, most notably the HAMC in the 1970s. As you'll see if you find time for the documentary, the RICO operation was a failure -- they tried three times to convict, and never could. Thus, the state has no right to treat these MCs as racketeering or criminal organizations: as you say, they have to prove their charges.

E Hines said...

It seems to me that the government's case also fails--or should fail--on 1st Amendment grounds: Congress shall make no law [abridging] the right of the people peaceably to assemble....

That the assembled people happen to be acting under their 2d Amendment rights also is not any sort of indication of an "un-peaceable assembly."

Or is the government trying to argue that we can only exercise one of our rights at a time?

Eric Hines

DL Sly said...

Close, Eric, a bit more nuanced though...it's the 2nd amendment that is supposed to be exercised (preferrably in an enclosed range under constant supervision *wink wink nudge nudge* and then put away under lock and key until you want to exercise it again) in singularity and never in combination with any of the remaining rights.
0>;~}

RonF said...

So the law says that a felon can't hire an armed bodyguard? Why? I can (barely) understand that a felony conviction can restrict you from keeping and bearing arms (and voting, and ...). But can someone explain to me why a felon should not be able to make any provision for self-defense at all?

raven said...

So this would apply to any public figure who has a conviction? No paid body guards?
Next question- what does the subject of pay have to do with it? At all?
Last question- this implies that because one person has been convicted, other people must give up their rights?
oh well, one more nail in my belief in the system.

bthun said...

"The state has got itself into some deep waters there."

Deep water indeed, but as is the case more and more frequently, I'd say it's the citizen in need of the flotation device. The gub'ment has a natural buoyancy which allows card carrying members/family/associates to float above the surface of the law.

Whoops! My bad for letting slip that seepage of cynicism.

"I take it the law also reads that a convicted felon can't employ people to carry guns on his behalf."

Yup.
(h) It shall be unlawful for any individual, who to that
individual's knowledge and while being employed for any person
described in any paragraph of subsection (g) of this section, in
the course of such employment -
(1) to receive, possess, or transport any firearm or ammunition


"So this would apply to any public figure who has a conviction?"

(g) It shall be unlawful for any person -
Section(g) describes what constitutes a prohibited person. A quick read did not reveal to me an exclusion for a public figure.

"Next question- what does the subject of pay have to do with it? At all? "

That is the question. Apparently guilt by association is the law of the land, not a presumption of innocence on the part of the paid professional.

Can the Philip K. Dick's vision of a state where psychic technology is used to justify the arrest and conviction of potential murderers and criminals in general before they commit their crime be too far off?

"Last question- this implies that because one person has been convicted, other people must give up their rights?
oh well, one more nail in my belief in the system."


If it resembles mine, it's looking a lot like pegboard these days.

Grim said...

Pay usually establishes employment -- at least, if I pay you to do something for me, it does. Pay can be in cash or in kind, but where there is no pay (as here) there usually isn't any employment.

Thus, it seems really odd to suggest that these club members were "employed" by a fellow club member... in exchange for nothing... to do what they'd probably be doing anyway.

bthun said...

"it seems really odd to suggest that these club members were "employed" by a fellow club member... in exchange for nothing... to do what they'd probably be doing anyway."

Odd ain't the half of it.

MikeD said...

Has anyone arrested Marion Barry then? As Mayor of DC, the cops answer to him. Doesn't that mean a convicted felon had armed folks working for him?

bthun said...

MikeD said...

"Has anyone arrested Marion Barry then?"

*Looks at watch...* Not lately. =;^}

William said...

It all goes back to switching from the Peace Keeper model to the Law Enforcement model. That set the stage for the current system wherein those with government connections function under a different set of laws than those without. Thus it has always been, true. However, it is still an abominable warping of our republic's foundational structure... something about equality for all... Back on topic, I have no love for MCs for personal reasons but the gubment is waaayyy off base here. There should be other ways, far more righteous (and legally sound), to take them down if there is a need. Oh, wait, I forgot Fast and Furious... The government really does hate competition doesn't it.

William sends.

Grim said...

Oh, wait, I forgot Fast and Furious... The government really does hate competition doesn't it.

Good point!

Joel Leggett said...

Grim,

Leaving the merits of the case aside, which I think are weak, I want to address a few assertions in your post that need correcting. To begin with, to state that anglo/American criminal law arose from a business model or contracts approach is simply flat wrong. The fact that the language of business or contracts is used to describe certain relationships in certain circumstances does not mean that American law, especially criminal law, bases its origin in in a “business” world view. Your statement that “American laws are based on a model drawn up by businessmen lawyers” is breath taking in both its overreach and inaccuracy. American Business and contract law is, as one should expect, informed by the world of commercial transactions. Criminal law is informed by the need to strike a balance between the freedom of the individual and the necessities of an orderly society.

Secondly, your attempt to equate the Pagans MC with the Jomsvikings is just sad. Of all people I would expect you to know better. The Pagans MC is nothing more than a gang of thugs. They are not elite warriors. Most of them are nothing more than filthy obese white trash, certainly the ones I have met fit that description. Lets not make them into something they are not and lets not drag the name of warrior brotherhoods through the mud by equating them with low-life thug gangs. A Marine should know better.

Grim said...

Joel,

I don't know when was the last time you read the saga of the Jomsvikings, but let me quote from it a bit.

"Sigvaldi had administered the laws but a short while when breaches in the discipline began to occur. Women stayed at Jomsborg two or three nights at a time; and men remained away longer from the fort than when Palnatoki lived. Also, there were maimings once in a while, and some killings."

What really made the Jomsvikings famous was the courage with which they faced death in the last section of the saga. Most of the rest of the saga is a series of murders and feuds, combined with viking raids -- another way of saying 'going and taking whatever you want by force of arms.'

I'm not sure I agree with you that it's a bad analogy. I think the problem isn't that I'm romanticizing the Pagans MC, but rather that we tend to romanticize the vikings.

Now as for your larger point about the difference you see between criminal and contract law, I wish you would expand upon it. I'd like to hear more about the distinction you're trying to draw.

Grim said...

By the way, that quote about the maiming and killing from time to time? That was among themselves: Jomsborg was their fortress. We're talking about a pretty rough bunch of guys, one of the leaders of which accepted a death-duel with a 12-year-old boy (and lost it).

Joel Leggett said...

Grim,

The reason I pointed out the distinction between criminal and and contract/business law is to refute your assertion that American law, in total, is based on business arrangements and the world view that informs these arrangements. That is not an accurate description of all American law.

You stated in your original post that “American laws are based on a model drawn up by businessmen and Lawyers,” and that they are grounded in a “business-style” world view. Actually the origins of American law lie in the British Common Law tradition. That tradition began in the Middle Ages in England as a method of dispute resolution. Its distinguishing characteristic was the belief and practice that cases with similar fact patterns should be treated similarly and the decisions in those case would have precedential authority over other courts dealing with similar cases. This was a much more localized way of dealing with and settling disputes than the more authoritative approach of civil law systems that relied solely on statues and codes handed down by kings and/or officials to establish rights and responsibilities. In those systems the judges could not issue a ruling in a case that was not previously covered by the code. Consequently, the origins of American law are based in a more local vice authoritarian method of resolving disputes.

American law has continued to evolve in a manner that reflects greater specialization. For instance, family law is a separate discipline with a language all its own that hardly reflects a business/transaction driven world view, likewise with criminal law. Sometimes there might be some overlap with other areas of the law, i.e. business and criminal law. However, simply because some areas of the law overlap from time to time does not mean that one area, i.e. business law, represents the philosophical foundation of all law.

Joel Leggett said...

Grim,

As to your point about the similarity between the Jomsvikings and the Pagans MC, I am afraid we will have to agree to disagree. While it has been a long time since I read up on the Jomsvikings and you probably possess more knowledge than I of that group I do remember them being described as masters of the arts of war. While they were vicious violent men they were also considered elite warriors. While the Pagans MC can certainly be described as vicious and violent I find it a ridiculous stretch to refer to them as elite warriors that have mastered the arts of war.

Grim said...

Joel,

As to the Jomsvikings, there's some dispute as to whether they existed or were purely legendary. So, as to whether they were great warriors in fact, I couldn't say (the 'losing to a 12-year-old-boy thing is presented as evidence for the quality of the boy rather than against the quality of the Jomsvikings); but they are famous mostly for losing a battle and being summarily executed with great courage. Allegedly Odin was on the other side, though, which really does make it difficult (unless Odin's decided to lead the army to its doom in order to restock Valhalla, as does happen from time to time).

As to the matter of law, though, I want to say that I wish it were as you describe it. That's the law I want.

However, my understanding is that we explicitly cut ties with the English common law system in most American states (excepting Louisiana, where they inherited French law). As the 19th century progressed, justices like Oliver Wendell Holmes began to suggest that it was wrong -- I think his word was "revolting" -- to treat a law as worthy of being binding simply because it was of antiquity. Common law pleadings were cut out of the US system in the late 19th and early 20th centuries; and laws were increasingly codified rather than based on common law tradition.

This is my understanding, although my education is not as specialized in the law as your own. I'd love to know that I was wrong; but looking at the best-known aspect this morning, common law marriage, I see that it appears to be possible now only in ten states (not including Georgia). Everywhere else it seems to have been replaced by a contract-style marriage system, which requires a formal contract that must adhere to certain terms, and certification by some state-approved official.

Joel Leggett said...

Your original post discussed the basis/origin of American law. You stated that it was designed by businessmen and lawyers. As I pointed out, that simply isn’t true. You are correct that statutory law has largely replaced the pure common law system in America. Nevertheless, the impact and influence of the common law tradition remains prevalent in American law. Law students are instructed in it’s methodology of discovering legal rules and precedent through examining the rulings in different appellate decisions. In fact, that is how appellate law is still largely practiced, discovering legal precedent by piecing together different rulings in similar cases.

It is simply inaccurate to portray our Law is nothing more that a concoction brewed up by businessmen and Wallstreet lawyers.

Grim said...

I didn't say anything about Wall Street. What I said was that American laws are based on a model drawn up by businessmen and lawyers. Now, I believe that the facts bear this out: our laws are drawn up by Congressmen and state legislators, who are disproportionately either businessmen or lawyers. The Founders were very often businessmen -- silversmiths and surveyors, planters and merchantmen -- or they were called to the bar. Very few of the Founders were neither of these things.

I'm not sure how to judge the force of your objection from appellate law. You say: " Law students are instructed in it’s methodology of discovering legal rules and precedent through examining the rulings in different appellate decisions. In fact, that is how appellate law is still largely practiced[.]"

I see the point you're trying to make. However, entertain me: Might I not reply that what you've just described to me is lawyers designing interpretations of laws based on the rulings of other lawyers who were ruling on laws drawn up by a Congress that is largely made up of lawyers? (Indeed, the Senate is mostly made up of lawyers -- 54%.)

I'm not complaining about lawyers, "Wall Street" or otherwise. I'm just saying that, if you've been taught to think about problems from the perspective of contracts and employment, you may sometimes assume those models can be easily transposed on other social forms. Some of these forms, older forms like marriage, would be better handled with true common law.

Marriage is one very clear example of an attempt to reinterpret the older common-law models based on contract theory. I think it's been a mistake, because it gives rise to the thought that marriage is really only about the two people 'contracting' with each other; unlike the older forms of thinking about the institution, it makes it easy to justify dissolving the marriage if one or both of these parties are currently unhappy with it. You'd feel free to go to court to dissolve a business contract that wasn't satisfactory; why not a marriage?

That's a rhetorical question; obviously you understand the answer, as I do. I raise it to show the dangers of taking contract theory too seriously as an underlying model for non-business human relationships.

Joel Leggett said...

First of all, the treatment of marriage like a contract or transaction far outdates America, the common law, or even England, especially in older times and ancient civilizations where women were seen as property or bargaining chips. The use of dowery was often implemented in a way to sweeten the deal and attract a higher class of courtier (one could say customer). Relationships and treaties between countries were often sealed through marriage.

Interestingly enough, as our culture, and that of the world’s, becomes more commercial we are treating marriage LESS like a pure economic transaction. The aforementioned practices are no longer in use and women, at least in Western industrialized nations, are no longer treated as a commodity.

As to your point about the law, it is an incorrect assumption to think that all lawyers view all relationship and arrangements through the prism of contracts and transactions. That is an insupportable premiss that leads to the equally insupportable conclusion that this commercial/business world view then informs the drafting and interpretation of all our laws. The majority of lawyers simply do not practice in the business/contracts world. Therefore, this niche area of the law does not possess the number of practitioners necessary to have the impact you assign.

Grim said...

Joel,

What you are calling a "contract" when you use it to describe ancient marriages is not what we mean by it today. The forms vary widely by culture and time, but -- while negotiations and economic concerns were real enough -- the thing being formalized was a kinship bond, a union of families, and (in many cases) a quasi-military alliance. The idea of marriage as being analogous to a business contract appears (I learn from our mutual friend Dad29) to originate with Marin Luther's reforms.

The Protestant reformation is part of a large wave of changes that culminated politically (as you know) in the very different English, American, and French revolutions. All three of these were distinct in character, but they share this preference for market and contract modes of thought: we see them in Rousseau, John Locke, Luther himself, and in the constitutional theory of many of the Founders.

Now, you cite the economics of early marriage, and I want to say more about that. When I say that the Founders were chiefly lawyers and businessmen -- indeed, almost exclusively their leadership was at least one of these two categories -- you might notice the two things they weren't: nobility and clergy. Even after the English revolution, the Lords Spiritual and Temporal made up a (now lesser) house in Parliament; in France, the First and Second estates were overthrown by the Third Estate. In America, the two categories were banned from government: nobility from existence in America by the Constitution itself, and the clergy from a formal role in government by the Establishment clause.

Hannah Arendt points out that there was a transition in how we thought of the role of the private space that the home occupies: we stopped thinking of it as the economic center of our lives (as your ancients did). The thing about the Third Estate, whether here or in England or France, is that it makes its living in the public space: in the market. Marriage ceases to be as important economically because the market becomes central to life.

But here you and I are on the same page: we're talking about the same thing, we're just using two different sets of words for it. Marriage can be about love (or whatever) because it doesn't have to be about wealth. Yet now it's a contract between two people, not a bond between families; and it can be dissolved, because it's no longer the fundamental (private) economic unit. This is all a part of the same shift.

Anonymous said...

"I fight "authority", "authority" always wins......"

AJ said...

Be so noble, as to, explain to all of us eager readers, just what have you mastered, experienced, or otherwise been involved in, besides the"military", which many Pagan's also have in their discription of experience, that gives you the right to pass judgement
on any Pagan's experience or knowledge?

Grim said...

I have been to China and the Philippines, where I drank beer on the streets of Zamboanga during Ramadan. I have ridden and trained green-broke horses. I have been twice to Iraq, where I dealt with the tribes there, resolving disputes of honor and facing mortars, rockets, machineguns, and Kalashnikovs. I have carried a rifle outside the wire. I have sat with a tribal sheikh while blood from a suicide bombing was still on his floor.

I am a Southerner and thus a native member of a culture of honor. I also took a master of arts in history, so the Pagans' choice of symbols is well known to me. I'm not hostile to the MC, or to MCs in general. My judgment, if you want to call it that, is that they're doing something that may be the right kind of life for some kinds of men. It's good that they should live in the way they think right: that's what being a free man is all about.

If you're interested chiefly in motorcycles, I put 17,000 miles on my bikes last year in all weather.