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(1) Is the Eleventh Amendment Unconsitutional?

(2) Using the Exparte Doctrine for the Second Amendment

What About a Second Amendment Ex parte Young Doctrine lawsuit in federal court against the governors of all 50 states for the right to intrastate, interstate and maritime travel with open carry handgun--National Open Carry Handgun? Wouldn't that achieve the Second Amendment's Holy Grail faster that the NRA's National Reciprocity for Concealed Carry?

I am employing human rights treaties and the RICO Act against the United States for the Second Amendment right to intrastate, interstate, and maritime travel as a U.S. merchant seaman.

Even without the Ex parte Young Doctrine my post-Heller lawsuit will have the U.S. District Court for DC backed into their chambers with their history of judicial bias and hostility to my 6 years of cases litigating the Second Amendment from a merchant seaman's point of view (right to intrastate, interstate, and maritime travel) as an unrepresented civil plaintiff.

While I am in the final stage of preparing my lawsuit against the United States for printing I stumbled on the Ex Parte Young Doctrine by reading Caitlin Borgmann, Legislative Arrogance and Constitutional Accountability, 79 Southern Cal. L. Rev.753 (2006). That lead me to start studying Chisolm v. Georgia, 2 U.S. (Dall.) 419 (1793) and Randy E. Barnett, The People or the State?: Chisolm v. Georgia and Popular Sovereignty, 93 Virginia L. Rev. 1729 (2007).

The Ex parte Young Doctrine

Saltz v. Tenn. Dep't of Employment Sec., 976 F.2d 966 (5th Cir.1992):

"The Eleventh Amendment to the United States Constitution reads:

"The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state or by citizens or subjects of any foreign state."
That has lead me to believe that the Eleventh Amendment is unconstitutional as it strips away the core function of the "checks and balance" system of the Constitution of the United States. The perfect example is that when you live in State A and State B, C, D passes gun control laws that prohibit you from traveling into and through their States, preventing you from arriving at State E you have suffered constitutional injuries to your Second Amendment rights and to your right to travel. The Eleventh Amendment prohibits you from suing States B, C, and D (or all 50 states), even your own State. The exception is the Ex parte Young Doctrine.
On its face, the Eleventh Amendment shields the states from suits by non-citizens only, but the Supreme Court early on construed it in light of a broader notion of sovereign immunity implicit in our federal/state scheme so as to prohibit also suits against a state by its own citizens. See Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). However, as stated by this court in Brennan v. Stewart, 834 F.2d 1248, 1252 (1988), "a gaping hole in the shield of sovereign immunity created by the eleventh amendment and the Supreme Court" is the doctrine of Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). This doctrine holds that acts by state officials which are contrary to federal law cannot have been authorized or be ratified by the state; and suits seeking to enjoin such wrongful and unauthorized acts are not suits against the state and a federal courts' injunction against such wrongful acts is not a judgment against the state itself. The essential ingredients of the Ex parte Young doctrine are that a suit must be brought against individual persons in their official capacities as agents of the state and the relief sought must be declaratory or injunctive in nature and prospective in effect. [FN1] While labeled as a "fiction", the doctrine of Ex parte Young has become a fixture in federal litigation see Brennan at page 1252, note 6.

[FN1] For fuller discussion see Wright Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d, §§ 4231, 4232 (1988)

The Unconstitutional Eleventh Amendment?

I got the idea that the Eleventh Amendment might be unconstitutional from Barnett's article (at page 1737):

"Another reason for teaching Chisholm is that it represents the "road not taken" with respect to constitutional amendments. Congress and the states chose to follow the advice of Justice Blair. "If the Constitution is found inconvenient in practice in this or any other particular," he wrote in his opinion, "it is well that a regular mode is pointed out for amendment."[FN 33] Precisely because its holding was reversed two years later by the ratification of the Eleventh Amendment, Chisholm represents an opportunity to consider how the practice of constitutional interpretation by courts might have been different if the tradition of correcting Supreme Court decisions by express amendment had taken hold."

[FN 33] Chisholm, 2 U.S. (2 Dall.) at 468 (Blair, J.).

Now, the way I see it. The Eleventh Amendment was a Tenth Amendment power grab by the United States and the States, grabbing from the People power reserved to the People under the Tenth Amendment. If the argument can be sustained that the structure of the Constitution implied that the checks and balance system of a Republican Form of Government included the right of the People to sue their own States, and the others States for violations of constitutional rights, to sue in the federal courts, or even in their home state courts or the courts of the offending state then the Eleventh Amendment, in fact and law, would be unconstitutional just as Suna J. Thomas is now exposing Summary Judgment is unconstitutional becuase it violates the Seventh Amendment common law right to a civil jury trial. (But then again I may be wrong. I am just a merchant seaman. A nobody by political standards.).

Back to My Lawsuit: Hamrick v. United States

If I had the backing of the NRA or any number of Second Amendment advocacy groups I could tack on the Ex parte Young Doctrine add the governors of the 50 states for declaratory and injunctive relief prospective in effect to strike all state gun control laws and local gun ordinances that infringe, interfere with, or prohibit out-of-staters from exercising their right to intrastate, interstate, and maritime travel into, through, and out of their states with Second Amendment right to their lawful firearms (handguns). As in my lawsuit for the right to openly keep and bear arms. Hence, National Open Carry Handgun!

The cost of adding the 50 governors under the Ex parte Young Doctrine to my lawsuit:

Buest Guess: 50 copies of my lawsuit $30 per copy x 50 copies = $1,500.
plus $5 Priority Mail x 50 = $250
Total = $1,750.

But that doesn't take into account the discount price FedEx/Kinkos provides for volume printing. Rough educated guess would be a total price of about $1,000. Even so, I don't have the money.

Now if I had the backing of Second Amendment advocacy groups to fund the Ex parte Yound Doctrine addition to my lawsuit (pissing off 50 governors across this nation) the U.S. District Court for DC would be in a political Catch-22 situation. They would not be able to dismiss my case so easily since it would be in the spotlight of the public arena (news media) but the 50 governors will be hell bent to get my case dismissed for the audacity over the use of the Ex parte Young Doctrine in such a manner

The Ex parte Doctrine used in the manner I suggest is a far more effective way to accomplish National Open Carry Open that the method used by the NRA's National Reciprocity for Concealed Carry. The question boils down to which method do you believe provides the fastest route to your Second Amendment rights and freedoms? Sometimes the best way to accomplish your goals is to rock the boat with a cannonball splash in the old swimming pool! The Ex parte Young Doctrine as applied to the Second Amendment and the 50 governors will make that splash and piss off a whole mess of politicians.

Who wants in on this Ex parte Young Doctrine fight? All that needs to be done is raise funding for the 50 copies of the lawsuit and I will gladly tack on the Ex parte Yound Doctrine to my lawsuit.

Signed: Don Hamrick