Federally owned lands

FT. LEAVENWORTH R. CO. v. LOWE

The land constituting the reservation was part of the territory acquired in 1803 by cession from France, and, until the formation of the state of Kansas, and her admission into the Union, the United States possessed the rights of a proprietor, and had political dominion and sovereignty over it. For many years before that admission it had been reserved from sale by the proper authorities of the United States for military purposes, and occupied by them as a military post. The jurisdiction of the United States over it during this time was necessarily paramount.

But in 1861 Kansas was admitted into the Union upon an equal footing with the original states; that is, with the same rights of political dominion and sovereignty, subject like them only to the constitution of the United States.

Congress might undoubtedly, upon such admission, have stipulated for retention of the political authority, dominion, and legislative power of the United States over the reservation, so long as it should be used for military purposes by the government; that is, it could have excepted the place from the jurisdiction of Kansas, as one needed for the uses of the general [114 U.S. 525, 527]   government.

But from some cause, inadvertence perhaps, or overconfidence that a recession of such jurisdiction could be had whenever desired, no such stipulation or exception was made. The United States, therefore, retained, after the admission of the state, only the rights of an ordinary proprietor; except as an instrument for the execution of the powers of the general government, that part of the tract, which was actually used for a fort or military post, was beyond such control of the state, by taxation or otherwise, as would defeat its use for those purposes. So far as the land constituting the reservation was not used for military purposes, the possession of the United States was only that of an individual proprietor. The state could have exercised, with reference to it, the same authority and jurisdiction which she could have exercised over similar property held by private parties.

This defect in the jurisdiction of the United States was called to the attention of the government in 1872. In April of that year the secretary of war addressed a communication to the attorney general, in closing papers touching the reservation, and submitting for his official opinion the questions, whether, under the constitution, the reservation of the land for a site as a military post and for public buildings took it out of the operation of the law of March 3, 1859, (11 St. 430,) and, if so, what action would be required on the part of the executive or congress to restore the land to the exclusive jurisdiction of the United States.
...

But not only by direct purchase have the United States been able to acquire lands they needed without the consent of the states, but it has been held that they possess the right of eminent domain within the states, using those terms, not as expressing the ultimate dominion, or title to property, but as indicating the right to take private property for public uses when needed to execute the powers conferred by the constitution; and that the general government is not dependent upon the caprice of individuals, or the will of state legislatures, in the acquisition of such lands as may be required for the full and effective exercise of its powers. This doctrine was authoritatively declared in Kohl v. U. S. 91 U.S. 367.

All the judges of the court agreed in the possession by the general government of this right, although there was a difference of opinion whether provision for the exercise of the right had been made in that case. The court, after observing that lands in the states are needed for forts, armories, and arsenals, for navy-yards and light-houses, for custom-houses and court-houses, and for other public uses, said: 'If the right to acquire property for such uses may be made a barren right by the unwillingness of property holders to sell, or by the action of a state, prohibiting a sale to the federal government, the constitutional grants of power may be rendered nugatory, and the government is dependent for its practical existence upon the will of a state, or even upon that of a private citizen.' The right to acquire property in this way, by condemnation, may [114 U.S. 525, 532]   be exerted either through tribunals expressly designated by congress, or by resort to tribunals of the state in which the property is situated, with her consent for that purpose. Such consent will always be presumed in the absence of express prohibition. U.S. v. Jones, 109 U.S. 513 , 519; S. C. 3 SUP. CT. REP. 346; Matter of Petition of U. S. 96 N. Y. 227.

Besides these modes of acquisition, the United States possessed, on the adoption of the constitution, an immense domain lying north and west of the Ohio river, acquired as the result of the revolutionary war, from Great Britain, or by cessions from Virginia, Massachusetts, and Connecticut; and, since the adoption of the constitution, they have, by cession from foreign countries, come into the ownership of a territory still larger, lying between the Mississippi river and the Pacific ocean, and out of these territories several states have been formed and admitted into the Union.

The proprietorship of the United States in large tracts of land within these states has remained after their admission. There has been, therefore, no necessity for them to purchase or to condemn lands within those states, for forts, arsenals, and other public buildings, unless they had disposed of what they afterwards needed. Having the title, they have usually reserved certain portions of their lands from sale or other disposition, for the uses of the government.

This brief statement as to the different modes in which the United States have acquired title to lands upon which public buildings have been erected, will serve to explain the nature of their jurisdiction over such places, and the consistency with each other of decisions on the subject by federal and state tribunals, and of opinions of the attorneys general.

The anemic 10th amendment

Americans often engage in the conceit that we have the oldest written constitution in the world. But that's a false story, and a dangerous lie to boot.

Yes, a Constitution was written in 1789. And it fell apart in 1861 under the weight of its uncertainty on whether the United States was a collection of sovereign states or one nation -- and even more so based on its moral bankruptcy on the issue of slavery.

And so, beginning in 1865, a new Constitution was forged, both in the halls of Congress and, as importantly, on the battlefields of Antietam, Bull Run and Gettysburg.

For all that some conservative members of the Supreme Court talk about "original intent" in the words of the Constitution, remarkably little attention is paid to the intent of those who refounded this nation in the wake of the Civil War. This is not a nation where the intent of slaveholders in 1789 is the only intent that matters in understanding constitutional law.  Instead, the movie Lincoln reveals a far more diverse set of principal players in our constitutional dramas -- not just Lincoln himself, but House Speaker Schuyler Colfax, abolitionist firebrand Thaddeus Stevens of Pennsylvania, Secretary of State William Seward, Rep. James Ashley of Ohio and a wide range of others.

Lincoln is the key player -- at least for this opening act of the constitutional drama -- but the movie is masterful in showing that the real story is the national will that he helped midwife among fractious factions to remake the Constitution.

And while Lincoln would exit the drama at the hands of an assassin, the rest of the players would continue the constitutional drama in coming years in enacting the 14th and 15th Amendments. This new Constitution was clearly dedicated to ending the dogmas of "states rights" and giving Congress the power to enforce this new national consensus.

That "states rights" was the key issue in this Constitutional change is understood, if disputed by some, but the latter point of giving Congress, not the Supreme Court, the responsibility for enforcing equality is less recognized. With the current Supreme Court reviewing whether Congress exceeded its powers under the 15th Amendment in renewing the "preclearance provisions" of the 1965 Civil Rights Act, the film is a strong reminder that constitutional drafters like Thaddeus Stevens were determined to challenge the power of the Supreme Court, which had essentially launched the Civil War by overturning Congressional legislation in the Dred Scott decision.

All three post-Civil War amendments provided -- crucially, in the minds of Stevens -- that "Congress shall have power to enforce this article by appropriate legislation." Note that these were the first Amendments to the Constitution that specified not limits on Congressional power but instead its expansion -- with not a word about a judicial role in limiting that power.

http://www.huffingtonpost.com/nathan-newman/lincoln-and-the-founding_b_2277918.html

Natural born and the Harvard Law Review Forum

According to Lee, two legal theories of citizenship were popular at the time the Constitution was ratified: jus soli (Latin for "law of the land), which held that a child's citizenship flowed from the actual, physical place of his birth, and jus sanguinis ("law of the blood"), which held that parents passed their citizenship to their children. However, Lee argues, at the time the Constitution was ratified, jus sanguinis applied only to patrilineal descent.

"However odious it seems today, a child born of a woman whose citizenship was different from her husband's—much rarer then than today—could not be a 'natural born Citizen' of the mother's country. That idea wasn't even considered until 1844 in Victorian England."

Mary Brigid McManamon, a constitutional law professor at Widener University, made a similar argument in The Washington Post Tuesday. "In this election cycle, numerous pundits have declared that Cruz is eligible to be president," she writes. "They rely on a supposed consensus among legal experts. This notion appears to emanate largely from a recent comment in the Harvard Law Review Forum by former Solicitors General Neal Katyal and Paul Clement. In trying to put the question of who is a natural-born citizen to rest, however, the authors misunderstand, misapply and ignore the relevant law."

The law Katyal and Clement are ignoring, McManamon argues, is 18th-century English common law, which the Supreme Court has said is a necessary lens for understanding the founders' understanding of the Constitution—a fact that Katyal, Clement and McManamon agree on.

English common law was "unequivocal" on the subject, McManamon says: "Natural-born subjects had to be born in English territory." Katyal and Clement, rather than relying on common law, turn for their interpretation to a trio of 18th-century British statutes that were "a revolutionary departure" from the common law, McManamon argues.

http://www.newsweek.com/ted-cruz-canadian-citizen-415430

Zimmerman's provocation

http://www.talkleft.com/story/2012/5/16/12944/9520

The state seems poised to claim that Zimmerman's following of Trayvon, and his verbal demand Trayvon explain his presence in the neighborhood, based on his unfounded assumption Martin was a criminal, somehow provoked Martin into hitting Zimmerman and made him the aggressor.

For the reasons I explained in the above posts, the state is unlikely to prevail on such a theory. To be an aggressor, Zimmerman had to provoke the force used by Martin. Provoking a state of fear is not enough. Also, Zimmerman's provocation had to be contemporaneous with Martin's use of force against him. It can't be the result of something that happened earlier.

Profiling, following and pursuing someone is not provocation for a punch in the nose or banging someone's head into concrete.

If Zimmerman is not the aggressor, if he didn't provoke Martin's punch, he had no duty to retreat, and so long as his fear of serious bodily injury or death from Trayvon's punch and/or slamming his head onto cement was reasonable, his use of deadly force in response was justifiable. Zimmerman was not committing a crime by profiling or following Trayvon and Zimmerman had a right to be on the streets of his neighborhood.

Even if Zimmerman somehow was found to be the aggressor, all that does is trigger a duty to retreat, if possible (on Trayvon's part). If retreat isn't possible, and Zimmerman feared serious bodily injury or death from Trayvon's physical attack on him, Zimmerman can still use deadly force.

voting and citizenship

It seems to be a matter of common sense that a person who wishes to vote must prove his citizenship.

Not only is this not required, it is illegal to require proof.

wikipedia explains that:

The National Voter Registration Act requires States to "accept and use" a uniform federal form to register voters for federal elections. 42 U. S. C. §1973gg–4(a)(1). That "Federal Form," developed by the federal Election Assistance Commission (EAC), requires only that an applicant affirm, under penalty of perjury, that he is a citizen.

Arizona law, however, requires voter-registration officials to "reject" any application for registration, including a Federal Form, that is not accompanied by documentary evidence of citizenship. Respondents, a group of individual Arizona residents and a group of nonprofit organizations, sought to enjoin that Arizona law.

Ultimately, the District Court granted Arizona summary judgment on respondents' claim that the NVRA preempts Arizona’s requirement.

The Ninth Circuit reversed, holding that the state's documentary-proof-of-citizenship requirement is preempted by the NVRA.

On June 17, 2013, the U.S. Supreme Court ruled against Arizona in the case Arizona v. Inter Tribal Council of Ariz., Inc.. The Court held the NVRA preempted a 2004 Arizona proposition, Proposition 200. It was a ballot initiative designed in part "to combat voter fraud by requiring voters to present proof of citizenship when they register to vote and to present identification when they vote on election day." Purcell v. Gonzalez, 549 U. S. 1, 2 (2006) (per curiam). It was a 7-2 decision striking down the law.

Justice Antonin Scalia wrote the majority opinion.

https://en.wikipedia.org/wiki/National_Voter_Registration_Act_of_1993

Modern active shooter protocols

The FBI says:
https://www.fbi.gov/about-us/office-of-partner-engagement/active-shooter-incidents/active-shooter-planning-and-response-in-a-healthcare-setting

Prior to Columbine, an active shooter incident would have been considered an operation to be handled by a SWAT or tactical unit. 

Lessons learned from this tragedy included the need for all police officers to be properly trained, equipped and empowered to immediately intervene in an active shooter situation to stop the ongoing violence regardless of their assignment.

Modern day law enforcement training and tactics dictate that the primary objective of the first law enforcement officer(s) on the scene of an active shooter situation is to locate and stop the person or persons believed to be the shooter(s). As law enforcement active shooter training has evolved, there has been a move away from waiting for several officers to arrive and form a “team” prior to searching for the shooter. 

 Today, many agencies and trainers recommend a solo officer entry into an active shooter situation if it is believed the officer on scene can locate, isolate and/or stop the shooter prior to other arriving law enforcement officers. The solo officer entry can be a very dangerous response strategy. However, properly trained and equipped police officers acting alone without the benefit of backup have stopped ongoing active shooter situations, thereby saving lives.

This type of rapid response was implemented in this incident.

https://en.wikipedia.org/wiki/Shooting_of_John_Crawford_III