Our Inalienable Rights Have Been Stolen
and Our Own Government Enabled the Thieves

By Thomas Coffin

In 600 AD the Roman emperor Justinian decreed that the air, running water, the seas, and the shores of the sea belonged to the people and were perpetually held in common as necessary for the common good and ensuring the lives of the people.

This right was promulgated throughout other lands and became part of the Magna Carta in 1215, enshrined in the Common Law that was an integral part of American tradition and law after the founding of our Democracy.

Our Declaration of Independence in 1776 set forth the principles that all people are created equal and are endowed with certain “unalienable rights”, and that among these are Life, Liberty, and the pursuit of Happiness.

The Preamble to our Constitution carried this acknowledgment forward and expressly states that the People are establishing the Constitution for certain purposes, among which were to establish Justice, promote the general Welfare, and secure the Blessing of Liberty to ourselves and our Posterity.

Adding to this heritage and tradition are the Fifth and Fourteenth Amendments to the Constitution, which guarantee that no person shall be deprived of life, liberty, or property without due process of law, which incorporated the model of the rule of law associated with the Magna Carta for centuries. Under this model, strict adherence to due process was the most important safeguard against tyranny. The due process requirement has been applied to protect certain areas of individual liberty from infringement by state action. (Magna Carta: Muse and Mentor. A Library of Congress Exhibition, November 6, 2014–January 19, 2015.)

With this background, I offer this commentary on certain critical topics that face our nation today—climate change, gun violence, women’s rights, the creeping momentum of theocracy, and the methodical dispossession of our “unalienable rights” by those entrusted with their safekeeping, with nary any national discussion, much less action, to protect those rights which are fundamental to our very existence.

Let me begin with climate change. Prior to my retirement, I presided over multiple proceedings in the pioneer case of Juliana v the United States wherein the plaintiffs in that action are seeking redress from the government for decades of policies and actions enabling life threatening carbon emissions build-up in the atmosphere and seas. In simple terms, during the entire history of the era in which this was occurring (and it’s still going on), the government was subsidizing and promoting the fossil fuel corporations in their extraction and production of energy sources which, without exaggeration, were poisoning “the air, running water, the seas, and the shores of the seas” which are “necessary for the common good and ensuring the lives of the people.”

At one of the hearings in the case, I asked the Intervenors (consisting of the energy corporations) if, in their opinion, our government could just sell our territorial seas to the oil corporations. Their answer was in the affirmative.

This was a stark and foreboding admission—whatever happened to the “unalienable rights“ enshrined in antiquity, the common law, and our founding documents? Sold to corporations? Without a discussion or even a thought to the common good and the needs of the people and posterity?

To state what should be obvious (but isn’t at all to key decision makers) is that our Constitutional government was not established for the benefit of corporations and their profit, but rather and expressly for the people and all future generations of people. Yet that principle rings very hollow in corporate boards and within the government spheres they are allowed to greatly influence with their corporate contributions.

That brings me to the next subject—the epidemic of gun violence, which is another example of yet another sale of “unalienable rights” (Life itself as well as Liberty) by government to corporations—the arms industry.

In 2005, Congress enacted the Protect Lawful Commerce in Arms Act (PLCAA), which essentially granted immunity to arms dealers for selling assault weapons to the general public from lawsuits filed by victims seeking compensation for injuries inflicted by the purchasers of these military grade weapons. The legislation had the support of the NRA, the arms manufacturers, the commercial sellers of the weapons, and, most oddly, the United States Department of Defense, which submitted the bizarre plea to Congress not to burden its suppliers of military weaponry with the trouble of defending against lawsuits by victims of military weaponry sold outside of the military. (This was during the George W. Bush administration, when Donald Rumsfeld was Secretary of the Department of Defense.)

The occasion triggering the PLCAA was the lapse of the 10-year ban of the Assault Weapon Ban passed by a different Congress. In other words, knowing that resumption of sales of military grade weaponry to the private sector would inevitably result in a resumption of civilian casualties at their hands, the solution was to protect the profits of the corporations marketing the weaponry with immunity from liability and even from the cost of defending against lawsuits.

The entire basis for the PLCAA was riddled with lofty political rhetoric, self-serving worship at the altar of a made-over Second Amendment, and the utterly false construct that these weapons were a mainstay of self-defense for oneself and one’s home and family at imminent peril without them.

The history of how these military grade weapons are being used in the private sector bear no resemblance to the rhetoric justifying their trafficking. There are few instances where an assault weapon, as opposed to a handgun or a rifle, have been used in acts of legitimate self-defense or protection of family. A Kyle Rittenhouse functioning as a self-appointed untrained vigilante killing and wounding protesters with his AR-15 is not the stuff that a rational society wants to encourage with a blanket immunity law, nor are the tens of thousands of fatalities and casualties inflicted on innocent civilians by the mass shooters wielding this weaponry since PLCAA was enacted. Propaganda and fictional promotional rhetoric must not be equated with facts when evaluating the costs which people are literally paying with their lives because Congress has subsidized the arms industry and their profits in selling the means to wound and murder them.

As with climate change, the government has “alienated” a right. Where was the due process? By denying the victims compensation for loss of life and limb against the commercial traffickers causing that loss, we are denying them due process (I need to emphasize that any victims would have to prove the sellers were a proximate cause of their loss, undoubtedly focusing on the sellers’ knowledge and marketing, and that would be the victims’ burden at trial—but the PLCAA denies them even a their day in court.)

One would hope that the media would highlight this immunity legislation, but that has not been the case. I have found one article from the Washington Post, back in May, 2016, written by David Kopel, an attorney, a benefactor member of the NRA, and reportedly a recipient of $1.39 million in grant money from the NRA Civil Rights Defense Fund between 2004 and 2011 (Source— Fox News station in Denver.) Kopel basically tried to make the point that the PLCAA is not an immunity statute, because buyers of arms can still sue the manufacturers if the guns are defective and injure the purchaser (e.g. the gun explodes and injures the shooter). That of course is a classic false equivalence. Congress bestowed immunity on the sellers from injuries inflicted on third party victims by the purchasers of the weaponry. It is of no comfort that the shooter can sue if his weapon is defective and harms him!

Finally, let’s turn to women’s rights and creeping theocracy. As the whole nation knows by now, the majority of the Supreme Court is poised to overturn Roe v Wade and find that there is no basis in the Constitution, history, or tradition to find any rights women have in a Liberty interest in their bodies. Their search exclusively focused on patriarchal offerings, as women were nowhere to be found in the search index and were excluded from even voting with the menfolk until 1920 after the passage of the 19th Amendment.

This can be filed into the category of “No women need apply” of fundamental rights. The Second Amendment is ballyhooed as a personal right stemming back to the able-bodied Minutemen, but the right to Life, Liberty, and Happiness was written by men at the same time and Justice Alito can find no mention (“zero, zilch, none”) about women in our founding documents.

What crass discrimination. What about women’s rights to have due process under the Fifth and Fourteenth Amendments before being deprived of life, liberty, or property? Surely that applies to all the people, and I beg to ask what due process was applied before various States began offering bounties to individuals to ferret out and sue women for traveling to a clinic for medical consultations? Is there not any liberty interest in their privacy and travel?

The nation finds itself in this maelstrom because it ignores a key component of the First Amendment—the anti-establishment clause. There is a strong religious movement at the highest level of politically active Churches to impose their religious doctrine on women through the enactment of penal sanctions by the State to enforce religious doctrine. That itself is a doctrine of one major Christian religion, which mandates that all States must impose “appropriate penal sanctions” to enforce its doctrine that life begins at the moment of conception. The five co-signers of the leaked Alito draft are all affiliated with that particular religion. If enforcing religious doctrine through imprisonment of non-believers is not theocracy, what is? And this, dear people, is just the beginning of the theocracy train’s destination.

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Thomas Coffin was the keynote speaker at the Blackberry Pie Society’s Political Party in February, 2020.

He is a retired federal magistrate judge for the U.S. District Court for the District of Oregon and a former professor at the UO Law School.
Thomas retired in 2016 after 24 years on the bench, prior to which he had a career as a federal prosecutor spanning 21 years. He is married with 7 children.
The Blackberry Pie Society is pleased to include a collection of his essays on our website. We will post them as they become available.

Posted 6.1.2022