The claim and exercise of a constitutional right cannot be converted into a crime.
— Miller v. U.S. 230 F 486, 489.
Q What is sin?
A Any thought, word or deed that breaks God’s law by omission or commission.
— Questions from First Catechism, Biblical Truth for God’s Children
It’s our goal to enhance our driver services and provide convenient options for our customers.
— Bill Gibbons, Tennessee department of safety and homeland security, which oversees driver licenses
By David Tulis / 92.7 NoogaRadio
LAWERENCEBURG, Tenn. — The trial of Arthur Jay Hirsch in a Tennessee criminal trial reveals much about the deplorable condition of American liberties, the heart of a citizenry distrustful of the private sector and the grand sweep of state entities into what is fairly called commercial government.
Mr. Hirsch is an ideal defendant in many ways, having framed his legal position long before being arrested, charged and tried for exercising constitutional liberties. A 65-year-old bachelor with a gentle disposition and deep Christian interest, Mr. Hirsch long has tried to lead a life presupposing constitutional liberties.
He has studied law on his own for years, conducts all his business in private, and lives without the benefits of banking services and other connections with government. The Lawrence County, Tenn., man is a constitutional scholar and wise man, even though in his calling as day laborer and parking lot repair man he is a lowly one.
But he’s not a hermit. He’s known in Lawrence County as “the fiddle man” who plays Christian hymns for shut-ins at nursing homes and the county hospital and at funerals. He played Christmas tunes in the courthouse the day after his conviction, and in the county jail in the same building on Christmas day.
An entity called the State of Tennessee obtained a true bill from the Lawrence County grand jury even though Mr. Hirsch wrangled an audience with that body, an opportunity unheard-of among run-of-the-mill criminal defendants. State trooper Jeff Reed told that body how he arrested and charged Mr. Hirsch with the crimes of driving without a license, driving in an unregistered motor vehicle, driving without insurance, and “carrying a weapon with the intent to go armed.”
The four charges were tried Dec. 22 in Lawrenceburg, its ramshackle and bizarre-looking courthouse overseeing a quiet farm town. The 12 jurors took 40 minutes to convict. The foreman read aloud from single pieces of paper each conviction, the jurors confirming by a show of hands.
The Lawrenceburg Advocate assigned no reporter to the confrontation, though its editor knew about the coming trial. Nor did the Tennessean in Nashville send a reporter after having been told the trial promises to be one of first impression. A group of pastors from nearby Alabama had said they said they would leaflet the public sidewalks around the court with Fully Informed Jury Association brochures about jury nullification — the power of jurors to rule on the law as well as the fact in a case. But they were a no show.
No group came to his support, and in the largely empty courtroom no more than four friendly people sat. No court reporter was present, but the official transcript of the trial on appeal will be based on a digital recording made by the complainant.
Living the innocent, private life
Mr. Hirsch is like many people who are “ground to powder” by the court system. He is poor financially, partly on account of his legal woes. A drawn-out descent to death of his mother kept him close to home to care for her, limiting him to small jobs. He is like many people accused for offending the state — lacking permits, lacking licenses, lacking insurance, lacking means. He is like many whose crimes are not mala in se, or evil within themselves — moral evils Their crimes, and Mr. Hirsch’s crimes, are mala prohibitas. Not crimes against God or the common law, they are offenses against rules and custom. They are not inherent evils; they are “victimless crimes,” to use the terms Mr. Hersch proposed to the jury.
Paper crimes, in other words.
Mr. Hirsch says the court system works harshly against the poor, people who cannot afford lawyers, who carry guns without a concealed carry permit because they cannot afford the F$75 concealed handgun carry class at the local gun shop, the workday that a class takes, and the up to F$153 fee for background check and permit. These are ignorant, unlearned common people, boggled by their personal and other problems, their double jobs and car breakdowns. Their petty offenses clog the courts and bring in millions in fees, and they take it quietly, enduring humiliation and “the way things are.”
Mr. Hirsch took a pauper’ oath and had assigned him a state-paid attorney. William Josh Morrow acted as elbow counsel. Mr. Hersch wrote and spoke in his own defense.
Loose with the rules
Judge Stella Hargrove gave a day to try the case that had been preceded by a flurry of motions from Mr. Hirsch. She was cavalier with the rules, indifferent to Mr. Hirsch’s inherent rights, her seemingly casual way of handling matters provided few benefits to the defendant.
As if she were buddies with the state, Judge Hargrove talked with state assistant district attorney Tammy Rettig and trooper Reed in the absence of Messrs. Hirsch and Morrow.
“This could be a felony charge since it took place in a public place,” Judge Hargrove said to Miz Rettig. “This will have to be addressed.”
Hearing this discussion and seeing an empty defense table, I rushed out into the lobby and told Mr. Hirsch to hasten back into court.
He burst in.
“Have there been communications with the state attorney?” he asked.
“No one has ever accused me of ex parte communications,” the judge cried. “Are you accusing me?”
“I am not accusing you. I ASKED if there had been any ex parte communications,” Mr. Hirsch said.
“You were not here. I was talking to the general,” she admitted.
“I was in the restroom,” he rebutted. “I am sorry.”
Judge Hargrove noticed my having returned to my seat working on my laptop, and shouted across the empty hall’s rows of seats to close it and not touch it.
Throughout, Judge Hargrove called Miz Rettig “the general” or “General.” In a 2013 case in Williamson County Miz Rettig argued in a motion to be called general because defense attorneys refer to prosecutors as “the government” in court to “inflame the jury.”
Steamroller trial outside jurisdiction
Mr. Hirsch had challenged the state’s jurisdiction to try him criminally for disobeying laws that did not apply to him. Judge Hargrove dismissed the motion, saying it would be addressed later. Indeed, jurisdictional challenges can be brought up at any time, and are powerful enough to exclude all other matters.
No doubt jurisdiction is one of many appealable points from the Hirsch trial.
Gen. Rettig read charges that he did “unlawfully drive a motor vehicle” on the public highway and that each of his four crimes is “against the peace and dignity of the state of Tennessee.”
Pleading “not guilty” would have admitted jurisdiction. So Mr. Hirsch stood silent.
Hon. Hargrove entered not guilty pleas for him.
State’s common man appeal
The theme of the prosecution was “accountability and responsibility.” Gen. Rettig recited briefly the afternoon encounter at a Kroger shopping center parking lot between Mr. Hirsch and trooper Reed. As “backup” arrived, Mr. Reed pursued an investigation into Mr. Hirsch’s affairs, joined by at least one city cop. The stop lasted three quarters of an hour. Mrs. Rettig said he had no documentation to be a driver, did not have registration or insurance, had a nonrecognized rear plate on his red Ford flatbed pickup, that he admitted to a revolver in the front seat. He had told the officer he is “not required” to have any of the papers for which he asked, she said.
Her opening argument lasted 10 minutes and hove closely to the fact base of the case. Her argument was that if this narrative of facts were true, Mr. Hirsch should be found guilty based on the application of the law to his use of the people’s roads.
Even before she had opened her case she had made an appeal to envy that is almost always the theme of state prosecutors against constitution-minded defendants. And that is: If you have to have a driver license to drive and use a motor vehicle, and if you have to have registration and pay taxes and fees for tags,and if you have to have insurance to drive a car on the public roadway — why shouldn’t this defendant have to do the same thing? Is it possible that somehow the laws that apply to you don’t apply to him? If you have to pay, why shouldn’t he?
These arguments were made by interrogatory, in that part of the trial called voir dire or jury selection.
All jurors admitted to having driver licenses, which is to say they had intimate relations with one of the parties in the case, and thereby not free of bias. “Could you drive even if you didn’t have it on your person?” Gen. Rettig asked.
“You could, but you shouldn’t,” a juror said.
“Why do you think state is involved in issuing licenses to people? Why does state have interest in its motorists?” she queried.
Another juror said the state has an interest in travelers’ “knowledge how to operate” a car or truck. This high bar includes an eye test and a driving test. “Would you agree the state would want to have standard for each driver? Would you agree that would be in the interest of the state?” she demanded.
She asked if the state has an interest in getting speeders off the road, how it could “keep up” with drivers without a registration process, how it would track driving records without registration, how potholes would be filled if taxes couldn’t be imposed, how Amber alerts would be possible if cars bore no tags, how chop shops would be broken up if VINs (vehicle ID numbers) were not tracked by the state.
In juror responses to these questions, she found people to winnow from the jury pool. The only person who could have blocked a conviction by hanging the jury was Janet Poston, a widow. She was ejected because she admitted Mr. Hirsch had played his gospel fiddle at her husband’s funeral.
Gen. Rettig followed with questions touching on the right to bear arms. “We have a right to possess guns under the constitution,” she said. “Do you recognize that the state and the United States have a right to limit you” in the ownership of guns? Would you obey laws limiting gun use? she asked.
She sniffed for anti-state prejudice by asking if any had a driver license suspended (none had), if any had been pulled over recently (Daniel Holt had). She wanted to make sure the jurors would comply with the Hon. Hargrove’s declaration of the law.
“Can you agree to follow the law provided in the jury charge? Will any of you refuse to follow the law as given?”
Jury selection put firmly into the jurors’ minds her argument. You are accountable, responsible and compliant, and Mr. Hirsch is not.
The trial should not have taken place because of Mr. Hirsch’s jurisdictional challenges. But even as it slalomed ahead, Mr. Hirsch was blessed with small graces.
A motion to restrict prejudicial terminology such as “government protester” or “sovereign citizen” was largely upheld, though Mr. Hirsch’s demand that commercial words such as “operate” and “motor vehicle” be defined was rejected as too cumbersome.
Judge Hargrove agreed with his bid to strike the word “possession” from the indictment, since “possession” of a firearm is a crime only if the accused has a felony criminal record, which Mr. Hirsch does not. Separately, Mr. Hirsch has sued Gen. Rettig, trooper Reed and second district attorney for knowingly and fraudulently processing his indictment with the word “possession” among the charges; he is demanding F$35,000 from each to compensate for the abuse.
She also relented in allowing into evidence Mr. Hirsch’s rescission paperwork in Virginia in which he returned a driver license and auto registration to state government in his effort to disappear from its system as a free-range traveler.
Another grace was that Gen. Rettig often used Mr. Hirsch’s vocabulary, describing his movement in his truck as traveling on the roadways rather than driving or transporting himself by a motor vehicle. In her ineptitude or her honor, she was nowhere near as belligerent and hostile as she might have been, and, like some careless aspects of Judge Hargrove’s court, left breathing room for the defendant’s cause.
In an opening statement Mr. Hirsch offered himself as a faithful Christian whose God issues a law that binds all the laws of man and whose commandments are the measure by which human law is judged. He said the Bible is the supreme law for the United States and Lawrence County.
Mrs. Rettig rose to object, insisting he must describe coming proofs in his defense and not give a lecture about constitutionalism and the Bible.
Judge Hargrove cut Mr. Hirsch short: “I think you’ve done that sufficiently.”
Mr. Hirsch said the driver license law does not apply to people exercising constitutional rights and that freedoms come from God, not from the abstract state that is his personless and faceless accuser. From the state one has only slavery under privileges. From God, one has liberty, he said.
Mr. Hirsch said the law is being misapplied to him, that he and thousands of Hispanics in Tennessee are exercising common law rights “to locomote and travel,” that traveling freely is not a tort or wrong to anybody. If a private motorist has an accident, “there’s recourse for that” and compensation in courts and through acts of personal accountability. His position, in other words, doesn’t entail anarchy, but an absence of predictive law and regulation, with law coming into play after mishap.
“I intend to show the law is correct, but doesn’t apply to me,” he said.
Into the evidence from Gen. Rettig would go a certificate from the State of Virginia indicating Mr. Hirsch had a suspended license. He brings up this conflict that is basis of the state’s charge of driving on suspended. Mr. Hirsch has severed his relationship with that state by “filings of mistake and error” that severed the commercial connection. He took a junk title for his car that removed it from the state’s database. A Virginia traffic ticket speeding followed the rescission filing, which legal action saves him from being subject to Tennessee state government, with which he has “no connection” by application or fee.
Neither does the gun charge stick, he said, because he cannot be shown to have been in commerce and subject to regulation.
The Tennessee constitution, he said, allows the general assembly to regulate ONLY the wearing of arms, not the carrying. He promised to show he was not wearing or carrying a small revolver in a lock-topped cooler in the passenger seat of his pickup cab.
“I was not wearing or carrying at all,” he said. “Carry means just what it says.”
“The law is correct. It cannot be made to apply to me; it applies to those in commerce. *** I’m trying to stand up for all of us to have our rights protected,” he told the jury. “They’re taking away our rights.” The people, he averred, must exercise their rights and not take taxable privileges.”
He sought to identify with jurors. “I appreciate the jury system and what it means to all of us. I consider you jury members my peers.”
But even at the beginning of his presentation the jurors were becoming his enemies. They were becoming indignant — perhaps even jealous — of Mr. Hirsch’s presumption of being a free man. That purported status contradicted their personal histories, the long-familiar American servitudes with which they had grown up and had come to accept as subjects, taxpayers, debtors and employees.
Generally people in courtrooms stand when judges enter. Lawrence County has a different idea. People stand when the jury enters the room, as though it is they, and not Judge Hargrove, who represents the high law of that place.
Trooper sole state witness
Jeff Reed is a gangly 6-footer whose trooper costume is full of military dignity and whose manner of speech, coarse and deep-throated, made me think of Tennessee mountain man and World War I hero, Alvin York. Same hearty stock, simple, rule bound, not easily provoked. So paperwork bound is Mr. Reed that when, on the stand, he was asked to identify the manufacture of the seized pistol, he looked down at his report rather than at the pistol itself, three feet away in an evidence box.
He was the state’s sole witness, though it wasn’t clear whether he represented the state itself in its dignities, or an independent party.
Mr. Reed’s primary job is “commercial enforcement” but he said he enforces other laws, too. He recounted the 2013 encounter in Lawrenceburg on a road that he said is “open to the public.” He noted Mr. Hirsch’s rear plate that “looked almost like an official plate” but one he said is not recognized by any state or national government.
Mr. Reed elicited details about a major mistake Mr. Hirsch made that night. That was admitting a weapon in the cab of his 1999 F350 Ford, thus providing probable cause for a search and the seizure of the revolver and the charge “carrying a weapon with the intent to go armed.”
The state’s witness proved to the jury that the gun was “in reach” of the person at the steering wheel, and its being loaded loaded was prima facie evidence that Mr. Hirsch intended to go armed.
Stabbing at trooper’s words
In cross examination, Mr. Hirsch elicited the following. Enforcement is selective, no blue lights or dash cams were used in the stop, the stop was “investigatory,” lasted 44 minutes but was a “pretty short stop.”
The report of Mr. Hirsch’s Virginia troubles came into the record, a certified Virginia document stating his Virginia license as “suspended” allowed. Mr. Hirsch had objected earlier no one was available to testify as to its accuracy. It is, he said after the trial, not accurate given Virginia’s law.
“I note your objection,” Judge Hargrove had said, “but sit down, that’s the way we’re going to do it.”
Mr. Hirsch cut short efforts to discuss gun details as these were irrelevant and prejudicial. Mr. Hirsch did not have the gun on his person (pat down performed), was not carrying the pistol, made no verbal or physical signs of threat, Mr. Reed testified.
Mr. Hirsch asked if trooper Reed understands the law he enforces. Yes. How then could he testify Mr. Hirsch was “carrying” when the gun was in a cooler with a screw-on lid. Doesn’t carry mean have in hand or on one’s person?
Trooper Reed sees everything through the pretense of law, and not with his eyes. The law says carrying and possession are the charges if the gun is nearby and available and bullets are in the cylinder. So that’s what he sees.
The trooper admitted having sworn to uphold the state and U.S. constitutions, but admitted he hadn’t read them in a long time, that he is “vaguely” familiar with the language on the right to bear arms.
Was his seizing the pistol an “infringement” of the right to bear arms?
“No sir, you were disobeying the law.”
Asked if Americans have any rights, and what it would be like if they were not subject to regulation and laws, trooper Reed said if there were no laws reducing constitutional rights there’d be “a free-for-all where nothing could be infringed.”
The trooper was as close as Mr. Hirsch got to facing his accuser in open court. A motion to subpoena district attorney Kim Helper — the boss of Gen. Rettig — had been denied. His accuser, Mr. Hirsch had said, is “a man-made fictitious entity, that has no life or soul, that has no inherent, God-endowed, unalienable rights, that exists only on paper, and as such, lacks ‘standing, because it is impossible for a fictitious entity to satisfy the required elements of ‘standing’” to be an accuser.” An abstraction, served by human agents, was persecuting a flesh-and-blood Tennessean.
Mr. Reed’s oath had been chopped to “Do you swear to tell the truth, so help you God?” not with the ampler reference to “the truth, the whole truth and nothing but the truth, so help you God.”
Mr. Hirsch could expect no better from the witness, a testimony framed in the law, not in physical acts.
God and government
After lunch the laborer Mr. Hirsch, a man with insights into the rise of commercial government, took the stand.
His testimony was a mix of factual statements and, obscuringly as to the facts, a discussion of the results of his research into constitutionally guaranteed rights. Public attorney Morrow sat quietly at the defense table, nowhere near the defendant’s elbow. His table was topped by papers and a stack of styrofoam cups, but no pink ice-filled water jug like that on the prosecutor’s table.
Mr. Hirsch on the stand struggled to keep argument distinct from testimony, and Judge Hargrove slapped him along to speak about the facts of the case, not discuss theology.
How is it, Mr. Hirsch asked, that he is a “renegade” merely for traveling the public highway by private means, not in commerce, and not injuring anyone? God gives government to “punish the wicked and praise the good,” and here he is, a victim of a prosecution. Is not government’s and the state’s role to protect “unalienable rights” granted by the Creator to “life, liberty and the pursuit of happiness,” as stated in the colonies’ declaration of independence? he demanded.
Every person “has the right to mobility, the right to travel and locomote,” he said. “Everything our Creator has made moves.” With no free movement, death and stagnation await. The jurors have many rights, but many of them are tied to free movement; without a right of movement, no right exists. Rights “are free and you never have to pay for them,” he said. Government is formed “to maximize our liberties,” for which the nation’s military veterans fought in wars overseas.
Privileges, on the other hand, are different. He described his 2003 research into privileges and discovered a right to travel “in one’s own private conveyance.” This right is not subject to restriction except under common law tort claims would allow someone injured in a car accident to claim legal redress from a negligent act of steering, accelerating or braking.
The rise of commercial government
“How did we lose our rights and move over here to privileges,” he asked.
Mr. Hirsch here closed in on Americans’ great servitude to the state, to that entity that is separate from government, behind government, as it were, steering government, controlling government, putting human faces on itself by granting the human face on government through elections, welfare programs and incessant public relations.
Government creates corporations and regulates commerce, Mr. Hirsch said. And commerce on the public highways is transporting people and goods for hire. Such services could include taxicabs and freight haulers. Government regulates these companies, which are legal abstractions and vehicles for human endeavor, because they make a profit on the “people’s roads,” and face taxation for wearing out the people’s asset in profitable commerce.
The nexus of state control of people, he said, is through commerce. The prosecutor is stretching that realm to include him, Mr. Hirsch, who has made every effort to legally absent himself from commerce and to use the roads for private purposes, not for gain, not for profit, and not within the nomenclature of commerce (such as the verb “operate,” which describes purely commercial and profit-seeking activity in the law).
Here Mr. Hirsch rebutted the jealousy resentment evoked by Gen. Rettig. He is not one shirking responsibility, he said, he is not endangering jury members or other motorists. He has been 50 years on the road without an accident.
He severed his relationship with the commercial government of the State of Virginia before the Virginia speeding ticket. Neither Tennessee or that state have “any administrative authority over me,” he testified. His acts in rescission and separation had been done in good faith and accepted by acquiescence, and he was no longer bound by a former commercial agreement.
At this point in the trial, I suspect, the jury’s sympathies turned against Mr. Hirsch. He was arguing the law, and became incomprehensible.
Yes, the feds may have in their papers clear reference to commerce in all points touching on roadway usage, traffic, licensure and commerce — and the states may have eliminated the commercial signifiers in their statutes to confuse the public to rake in revenues from private noncommercial users. Yes, Mr. Hirsch may think he’s not in commerce and that tickets cannot ever be given to him. Yes, Mr. Hirsch says he’s “not sneaking round and evading the law” (as he put it), and yes, Mr. Hirsch may be claiming the “rights the founders gave us” and that he cannot be “compelled into a contract.”
But as his occasionally disjointed testimony came to a close, the jury had already decided against him. No one they’ve met has ever made such claims. How can one man pretend to be apart from the state? Only a kook would make such an argument?
Ringing in their ears was a seemingly preposterous claim from, apparently, the only man in Lawrence County, Tenn., who thinks state laws don’t apply to him.
There followed this portion of testimony Mr. Hirsch analysis about his .22-caliber revolver. But it fell on deaf ears and the jurors started feeling put upon and bored.
‘Regulate the wearing’
Tennesseans have lived for decades under an absolute ban of firearms ownership. Though it has defenses and exceptions, it is an absolute ban that has hounded hundreds of poor and middle-income people in gun criminal prosecutions.
The bill of rights, however, declares an absolute right among the people to possess, carry, transport and use firearms. At article 26, it says,
That the citizens of this state have a right to keep and to bear arms for their common defense; but the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime.
Mr. Hirsch read this provision aloud and the 2nd amendment to the federal constitution about the right to bearing arms not to be infringed.
He also cited a 1796 Tennessee constitution rule of great vigor that says bill of rights provisions “shall never be violated on any pretence whatever” and that to
guard against transgressions of the high powers which we have delegated, we declare that everything in the bill of rights contained and every other right not hereby delegated is excepted out of the general powers of government and shall for ever [i.e. forever] remain inviolate.
Mr. Hirsch testified he has a natural right from God to defend his life and the lives of others, for which he kept a pistol near. He testified he lacked any “intent to do anything evil, immoral or violent” by possessing the gun. He testified he would have used the gun to save human life, say of escaping Rottweilers charging toward playing children or a murderer about to kill a witness.
The word ‘wearing” is fitting when saying one wears a watch or a shirt, he said. Wearing is wearing. “There is no definition in the statute for carrying,” he said. He would not have applied for a permit to carry concealed because that would have violated a principle. Being an honest and innocent man he exercises his rights and moves “completely within the law. *** There’s no evil intent. *** I didn’t need a permit. I had the security of the constitution.”
“I am standing on the very foundation of America,” Mr. Hirsch said. “I thank you.”
Smearing free man’s slight means
Gen. Rettig went on the attack to prove Mr. Hirsch’s remedies are erroneous and impossible in the world as it is.
She asked if his “voluntary documents of surrender” are ones he made up and typed out on his home computer. That he got no response from the state, she indicated, suggests rescission of contract is mere show, an ersatz demonstration without any effect that lets him say what he wants.
“So you travel on the roadway?”
“Yes, I travel.”
“Do you selectively decide which laws apply to you?”
No, he said. He studies the Word of God and all laws of the state that relate to him and comports himself accordingly.
“Do you have a valid driver license?”
“No, it’s not needed. *** As I said, I don’t drive, I travel.”
And he didn’t need a Tennessee or Virginia plate?
“Again, I wasn’t in commerce.”
She pressed him about the plate on the back of his truck. It came from an Indian tribe, he said, which had taken him in as a naturalized citizen.
“Is that sanctioned by any government?”
He said he didn’t know.
No registration required?
Mr. Hirsch has a bill of sale for the truck, which suffices with a junk title and keeps it off any state’s computers and outside its administrative jurisdiction.
Is defendant one to “flat out refuse” to cooperate with reasonable laws?
He is not flat out refusing, he said, but has “conscientious reasons” to not participate in commerce under a privilege. Mr. Hirsch objected to the phrase “just refuse” as a usage, saying it suggested he is bullheaded and troublous, when his testimony is that he is quietly complying with all laws that have him in their purview.
The general queried whether Mr. Hirsch would admit to being a “trespasser” on the people’s roads. Members of the public have an “unalterable right” to traverse the roads that they, as citizens, own, he testified.
Gen. Rettig next went after the pistol, asking if Mr. Hirsch kept it “for use on people.” He carried a gun, he intended to use a gun on people, she said.
Mr. Hirsch emphasized he would have used the gun in any just and righteous cause, that he might “be forced to use it” in defense of his now-deceased mother or himself, or other innocent parties, though he is uncomfortable with “what ifs,” he said.
Definitions blurred to hide distinctions
American liberties have been lost largely because the state has expanded its scope of operation beyond the government and into commerce. It does so in a realm known as administrative law, controlled in Tennessee by the UAPA, or the uniform administrative procedures act.
Through the framework of regulations premised on statutes OK’d by the general assembly, the executive branches of Tennessee and other states control commerce through agencies such as the department of safety and homeland security, the employer of trooper Reed.
Activity, property and people subject to regulation come under executive department purview and control through the murmurings of smudgy official definitions.
The Hirsch case should not have reached trial. Definitions and jurisdictions control, and if words are redefined or left undefined, members of the public have insufficient basis to see innocence, defined out of the case.
The trial should have been controlled by definitions making distinction between parties in commerce and parties not in commerce, between licensees and nonlicensees, between free people exercising rights under law and those who have secured privileges and state favors for their businesses, profit-seeking and persons.
The judicial system in the trial made sure definitions given to the jury in its instructions blurred these distinctions. Judge Hargrove was determined to make it clear that no right to travel exists, that on the roadways there is only commerce.
Even if true definitions had been allowed in the judge’s lengthy read-aloud admonitions to the jury, it is likely the envy factor would have kept the jurors on the state’s side and directed its members to find Mr. Hirsch guilty.
Gen. Rettig obtained the instruction that “motor vehicle” is “every vehicle” on the road. Agreeing with her, Judge Hargrove insisted the pattern instructions control, not state definitions sought by Mr. Hirsch that motor vehicle is “freight motor vehicle,” the full usage in the law (TCA 55-1-303, “‘Vehicle’ and ‘freight motor vehicle’ means every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, excepting devices moved by human power *** .”
Brief final arguments
The prim state’s attorney harkened back to her queries during jury selection and evoked the power of their claim. If a car is yours, what interest does the state have in it? She said a juror had said earlier the state controls cars because “we need to make sure we have good drivers.” The tracking of owners, taxation, Amber alerts she rehearsed as public safety benefits for the executive branch’s expansive claims upon the people’s thoroughfares. Tennessee has mandatory insurance because “we can’t do what we want,” she said. Without financial responsibility law, “we can’t get blood out of a turnip,” — meaning compulsory insurance allows for redress after accidents. One must have proof of an ability to compensate another after a crash, she said. This interest is the state’s, and it burdens the use of motor vehicles.
She rehearsed the events of the Hirsch-Reed encounter, saying that Mr. Hirsch “admitted to driving without” proper forms” and that his driving privilege “had been suspended by the state of Virginia” (not a true statement, and not a fact, Mr. Hirsch insisted afterward).
She said to have any firearm at all, he had to have a permit. Also not true, because one is said to need a permit to wear an arm concealed on one’s person, and Mr. Hirsch had the pistol in a container.
The state argued that Mr. Hirsch carelessly dealt with obligations to the state, that he did “throw away his problems so he doesn’t have to deal with them,” that he overplayed the meaning of nonresponse by Virginia to his rescission and remission filings and threw all his problems “into the closet because it stinks.”
The defendant “carried a firearm” in the state’s proof, he “concealed” it in a cooler, that he rejects a “commonsense reading” of the the law and exhibited an “intent to go armed” in a “intentional and knowing act” of storing the pistol in his truck. In her seven-minute close, General Rettig spited Mr. Hirsch’s claims to be a Christian claiming his rights under God’s law and man’s, saying that if man’s law is not in harmony with God’s, Mr. Hirsch would ignore man’s laws.
“Mr. Hirsch is not any different from any of you. If he drives, he must have a driver license, registration and insurance. He’s not any different than the rest of us.” His claims about constitutional rights to bear arms are not that simple, she claimed. The state’s case is one of “accountability and responsibility,” she repeated, and the jury should find Mr. Hirsch guilty.
Gen. Rettig hammered the smudge factor in a rebuttal of Mr. Hirsch’s, whose closing arguments followed. She said jury instructions would make clear there is no distinction between commercial and noncommercial traffic.
It was 3 p.m.
“Thank you, general,” Judge Hargrove boomed.
Guilty on all counts
The jury heard Mr. Hirsch’s closing arguments dismissively, returning 40 minutes later at 4:05 p.m. to find him guilty. His conviction on driving on suspended he was given a halfway fine of F$250, less than the F$500 maximum. On the gun, guilty, with no fine, probably because jury members believe in the right to bear arms. On each count of registration and no insurance, guilty with the maximum F$50 fine.
Before dismissing the 12 jurors, the judge in her oiliest and most ingratiating tone said thank you and asked to detain members “to talk about our court system and how we can improve it.”
The only journalist on the scene waited 30 minutes in the parking lot, talking with the defendant and left before any jurors appeared.
Mr. Hirsch next time says he will opt for a bench trial next time. The jury’s members are, he’d said, “the moral conscience of this country.” Indeed, the jury is made up of people just like us, and the ideals at its moral center are offended by this uncommon everyman’s exercise of constitutionally protected rights.
Though Mr. Hirsch rightly and intelligently argued his innocent activities, he is viewed as a danger and a menace. While he presented a genuine and good faith defense of his liberty, his presentation is a scandal to the jurors. Though important elements of the record were barred from their consideration, it is unlikely they would have swayed members in Mr. Hirsch’s favor had they been allowed.
Mr. Hirsch rightly said the “burden of proof today is whether the law it applies to me” and that “just because a law exists doesn’t mean it applies to everyone.”
Just look at any odd volume of the Tennessee Code Annotated, whether the chapters on embalmers or real estate appraisers in Title 62 or the titles on workers compensation or “establishments selling food” in Title 50. Very few laws deal directly with any one individual.
The prosecutor burdens her listeners with the suggestion that all laws apply to each of them at all times, and that if any one person says a particular law doesn’t apply to him, that he is a crank and scofflaw.
Miz Rettig got the jury to assume for itself the total state, for constant responsibility to all laws, and to shrink from anyone who, weakly, cries “No. That law does not apply to me, and you mistakenly think it applies to you.”
Mr. Hirsch is convicted because he does not conform to the possible error of others who are private users of the road taking for themselves the form of commerce. He refuses to enter the realm into which they voluntarily, and by mistake and through deceit, have entered and where they remain by acquiescence.
The state has lied to the people, and they do not know any better. They have not been jealous of their liberties, and have ruled that they do not have any such rights. Spurning the man who claimed to represent him, they have consigned him to fines and to jail sentence up to a year.
Mr. Hirsch is framing his legal position and making his legal arguments soundly. In the American judiciary, if you ask the wrong question in a case, you will get the right answer to the wrong question. If you ask the right question, you will get the right answer to the right question. Mr. Hirsch’s appeal, unlike those of predecessors, is properly framed to bring important reforms between Tennesseans and state government.
Mr. Hirsch erred by not asking for a bench trial in which the judge decides the facts and the law. The state played to the juror’s envy and resentment, and won an unjust verdict. The dispute is less over facts than law. Mr. Hirsch’s arguments over jurisdiction are sufficient to overturn the whole case. He was not in commercial jurisdiction enforced by commercial government, but under the bright guarantees of the constitution. Mr. Hirsch is an excellent candidate to properly frame the issues so the courts of appeal cannot wiggle out and uphold the state’s interests as opposed to the people’s.
For the state to consistently uphold its position, it forces the whole driver license statute into unconstitutionality. The state in his case is saying the 1937 commercial drivers act voided, destroyed and wrecked the constitutionally protected rights the people had enjoyed up until that point. No, the general assembly did no such thing, Mr. Hirsch will aver. It created a commercial driving regulation system, and did not injure any private traveler’s rights. Mr. Hirsch will argue that the driver license statute is not unconstitutional and, that being so, that he must have recognized rights to use his car or truck outside of commerce under the full body of rights to travel that existed prior to the law.
Mr. Hirsch will now have occasion to argue before appeals court judges that the statutory language of the driver license law is voluntary, and that the system of obligations in commerce applies only to those who have voluntarily submitted to the state by application and payment of fees.
— David Tulis hosts a talk show weekdays in Chattanooga from 9 to 11 a.m. on 1240 AM Hot News Talk Radio, covering local economy and free markets in Chattanooga and beyond. Support this site and his radio station on the real airwaves in Chattanooga, on your smartphone via the TuneIn radio app or at Hotnewstalkradio.com. You back David by patronizing his advertisers with specific reference to him. Even better, encourage independent media by having David run commercials for your business. Also, “buy me a coffee at the tip jar.”
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