Without even a signed order, the Tennessee Supreme Court rejected a petition for appeal by an appellant who says that his convictions on a travel and gun case are void because of many procedural errors at trial and because of misapplication of law.
Arthur J. Hirsch Appeals received a negative ruling in the Tennessee Court of Criminal Appeals and was denied a hearing from above in a double-barreled case of first impression.
By David Tulis / 92.7 NoogaRadio
To maintain his rights and to seek to overturn the law, Mr. Hirsch on April 18 filed a petition for a hearing in the federal supreme court in Washington.
In that appeal he is focusing on only one part of his grievance, his conviction under the “intent to go armed” statute that he argues violates federal law for vagueness and is a violation of the right to bear arms.
Mr. Hirsch is also seeking to overturn decades of law enforcement practice of Tenn Code. Ann. Title 55, the transportation law, which is enforced against people not involved in transportation. But he promises to address that question by means other than overloading his appeal to Washington’s top bench.
One possible reason his Tennessee hearing was summarily denied is that Mr. Hirsch takes a stab at a legal fiction that is at the heart of the modern nation-state and touches — perhaps unwisely — on its pretense and seemingly fictional nature.
And that is exposing the idea that the modern state is a form of idolatry that has raised itself up as God, a raising up done with unusual and ordinarily inexcusable legal aberration.
A secret with claws
The idea that the modern state is God walking upon the earth comes from the writings of German marches philosopher, Friedrich Hegel. The expression is one that is inspired friends of big government and the savior state since the 1840s, when the revolutionary era is traced by James H. Billington in Fire in the Minds of Men.
In his appeal, Mr. Hirsch highlights the religious pride of the modern state by touching the legal framework through which the state deifies itself as the only party able to move and act in society, as the embodiment and soul of society.
The anti-Christian premise of the modern state
To see how the modern state acts religiously as a total society-absorbing corporation, it is first good to consider its antithesis, the biblical and godly society described in the Bible, decentralized under God and free for all citizens and non-citizens within it, a society outlined in the first five books of the Bible that are “the closest thing to a radical libertarianism that can be had,” according to R.J. Rushdoony in his essay “The Meaning of Theocracy.”
Mr. Hirsch analysis is not a mere bit of philosophizing in a legal document, that goes at the legal fiction that necessarily underlies the religious premise of the state of Tennessee and other 49 entities like it in the U.S. federal republic. It is an analysis that touches high legal doctrines such as those explored by legal historians Lon L. Fuller in Legal Fictions (Stanford University Press, 1930, 1968) and Pierre J.J. Olivier, Legal Fictions in Practice and Legal Science (Rotterdam University Press, 1975).
The judicial-ethical state
The biblical conception of the civil authority is one in which the authority of the sword as described in Romans 13 is used by a judge, and not by a self-identifying free-standing corporation that is today’s executive state. The biblical model for the civil authority is that it is passive, waiting on the sidelines, but activated when there is a crime or wrong.
By its waiting open-doors court which is largely passive, the state brings peace and settlement into society, oppressing and harassing the evildoers, and providing a venue in which justice can be rendered in everything from business disputes to assault and battery, accident or theft. The biblical premise of the state is that there is no prison, that there is no executive state, and that the office of justice is passive and jumps into action only on petition. The judge is backed by appellate courts in hard cases, the judge rendering decisions against internal enemies or declaring war against external villains, with the sheriff (elected in almost all instances) enforcing court orders.
The modern conception of the civil magistrate contradicts God’s plan at every point. The modern executive state assumes all the powers of God, His omnipresence, His omnipotence and His omniscience. It’s not my purpose here to explain how that occurred, but I refer you to the work of writers such as Rushdoony, Gary North, and others such as Herbert Schlossberg in Idols for Destruction. In the biblical model alone are liberty and freedom possible. The most popular alternative is the progressive corporate welfare-warfare-surveillance state with its police and security services.
Total state ignores ‘standing’ rule
The religious claim and idolatrous nature of the modern state such as state of Tennessee is evident in all legal filings of a criminal nature. In the case against Mr. Hirsch, the styling of the action is State of Tennessee vs. Arthur J. Hirsch. In Chattanooga, the case against the errant school bus driver driver is similarly styled, State of Tennessee vs. Johnthony Walker.
To make itself god, the state operates in denial of a basic principle of law enforced on everyone but itself. And these are the rules for standing, an otherwise essential element of a court case.
The state is not the actual victim in the bus crash case. Such as a murder, or a burned-out house, in an arson case, there is an injured party. But the state files a criminal case and its own name because it is the chief victim. It represents its own interest, not the interest of the victim and the survivors. The three elements of standing are that it had sustained a distinct and palpable injury, that the injury was caused by the accused’s challenged conduct, and that the injury was apt to be redressed by a remedy the trial court was prepared to give. (See Petty v. Daimler/Chrysler Corp., 91 S.W.3d 765; City of Chattanooga v. Davis, 54 S.W.3d 248, 280 (Tenn. 2001))
Crucial legal fiction
Standing is a threshold jurisdictional question which must be addressed prior to and independent of the merits of a party’s claims. See Bochese v. Town, of Ponce Inlet, 405 F.3d 964, 974 (11th Cir. 2005).
Says Mr. Hisch, “The trial court lacked subject matter jurisdiction because the artificial/fictitious plaintiff/appellee lacked the three Tennessee elements of standing which can be seen upon examining the indictment.
“Appellant can find nowhere that the State is exempt from the three necessary elements of standing; and further, the elements apply to criminal as well as to civil cases. See City of Chattanooga v. Davis, 54 S.W.3d 248, 280 (Tenn. 2001)
“The State’s standing to invoke the trial Court’s jurisdiction requires that the Plaintiff/Appellee allege in the indictment that a personal right has been violated, and that ‘tangible,’ ‘concrete,’ ‘particularized,’ ‘distinct and palpable’ injury-in-fact has been sustained therefrom, i.e., not presumed, conjectural or hypothetical injury. This the State failed to do in the charging instrument, i.e., the indictment.”
Was a legal fiction personally injured?
“The requirement of standing, however, has a core component derived directly from the Constitution. A Plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen v. Wright, 468 U.S. 737, 751 (1984) (emphasis added) (see United for Separation of Church and State, Inc., 454 U.S. 464, 471-476) (Emphasis added)
“In order to establish standing, a party must demonstrate three essential elements. Metropolitan Air Research Testing Auth. Inc., v. Metropolitan Gov’t of Nashville and Durston County, 842 S.W.2d 611, 615… First, the party must demonstrate that it has suffered an injury which is ‘distinct and palpable,’…and not conjectural or Second, the party must establish a causal connection between the injury and the conduct of which he complains… Third, it must be likely that a favorable decision will redress the injury…These elements are indispensable to the Plaintiff’s case, and must be supported by the same degree of evidence at each stage of litigation as other matters on which Plaintiff bears the burden of proof. Lujan 504 U.S. at 560,” Petty v. Daimler/Chrysler Corp., 91 S.W.3d 765. (Emphasis added)”
“To establish one’s standing to bring an action, ‘a party must demonstrate (1) that it has sustained a distinct and palpable injury, (2) that the injury was caused by the challenged conduct, and (3) that the injury is apt to be redressed by a remedy the court is prepared to give.’
“In determining whether the Plaintiff has a personal stake sufficient to confer standing, the focus should be on whether the complaining party has alleged an injury in fact. . .” Mayhew v. Wilder 46 S.W.3rd 760, 767.(Emphasis added)
“The requirement of ‘standing’ is satisfied if it can be said that the Plaintiff has alleged a legally protectible and tangible interest at stake in the litigation. Guidry v. Roberts,
La.App. 331 So.2d 44, 50. . . . and [‘standing’] seeks to insure that the Plaintiff has alleged such a personal stake in the outcome of the controversy as to assure concrete adverseness.” Campaign Clean Water, Inc. v. Ruckleshaus, D.C. Va., 361 F.Supp. 689, 692.” Black’s Law Dictionary, 6th Ed., p. 1405 (Emphasis added)
Lawyers’ sausage factory
Mr. Hirsch goes on to argue that there is no complaining party in the indictment, and that without standing the criminal court has no jurisdiction. This is a supporting argument to his main thesis, that trial court lacks jurisdiction because Tenn Code Ann. title 55, the transportation and commercial drivers license statute, has no authority over a private user of the road not in commerce, not involved in transportation and not using the road for the extraordinary purpose of turning a profit in use of the road.
State government, operating outside the constitution, has repeatedly relied on courts to create legal fictions to maintain its regulatory apparatus.
In a 1999 case involving the Gnome of Strawberry Plains, the Tennessee court of criminal appeals cited a 1979 case that created licensees of people who were no licensees at all, but are people who SHOULD HAVE HAD a license. You are not subject to the transportation statute, but the state can force you to become subject to it if it thinks you should be subject to it.
“However, as the State pointed out in its brief, ‘the term “licensee” has been interpreted to apply to operators of motor vehicles who are licensed or who are required to be licensed. A person who operates a motor vehicle without a valid license violates the requirement that “every licensee shall have his operator’s . . . license in his immediate possession.’ State v. Cloud, 588 S.W.2d 552, 554 (Tenn. 1979).’” (State of Tennessee, appellee, v. John R.Ballinger, appellant, C.C.A. NO. 03C01-9206-CR-00223 1993 Tenn. Crim. App. LEXIS 417.
More on your right to travel
https://tnt23.wpengine.com/2018/04/u-s-judge-urged-notice-openness-in-tn-law-to-free-movement-travel-by-car/ Administrative Notice as PDF, 20pp