Tag Archives: Constitution

Is the Right to Keep and Bear Arms Dependent On Militia Membership? Part 1

The entertaining Greta

My opposition to Red-Flag laws has been steadfast countenancing no exceptions. Until now. Liberal Time Magazine’s Girl, er um “Person”1 of the Year’s trembling quivering rage-filled Greta Thunberg, who should be starring in H. P. Lovecraft inspired movies, could be that one exception. Ghostwriters and Handlers, please, do not allow Greta near sharp objects or anything that goes bang. Perhaps parents should be scheduling counseling sessions rather than enabling Greta’s delusions of imminent human extinction. Scandinavia once gave the world Vikings. What happened?2

From the Great Depression, mass starvation, to man-created global warming, the Left needs crises with which to menace people. Only through scare tactics terrifying the masses can they evoke reaction based on emotion rather than reason. People who have lost their minds seldom make good decisions. Since the Second World War, the Left, either through ideological compatibility or supreme naïveté, has promoted notions the way to deal with adversarial nations (Communist dictatorships) and people is through non-violent appeasement. Leftists are moral relativists rejecting concepts of good and evil. Therefore global and personal conflicts result from misunderstandings not malevolent intentions. Because people have “issues”, not problems, conflicts can be resolved without anyone having to accept blame or facing consequences. All Stalin needed was a couch, a good listener, and a hug. Today, if the puny underweight wretched victim of bullying stands up to his tormentors, school administrators suspend him along with the thugs. Through its evangelists teaching in public schools, the Left has indoctrinated Americans to reject notions of self-reliance and taking responsibility for their own safety. Lockdowns, shelter-in-place, hide under your desk or in your home…Hence, they grow up to despise the Second Amendment. They are aghast at the idea citizens can own guns and decide when and where to use them in self-defense. Appearing on Fox’s Martha MacCallum Show in response to the Fort Worth Texas church shooting, Democrat strategist Doug Schoen argued people are not competent to carry guns for personal defense. This he added, should be left to the police who, coincidentally, were not there.3 The Left hates the Second Amendment for two reasons; first, it exposes their unwillingness to stand up to bullies and criminals whether on American streets or as heads of State. Think, Justin Trudeau. Second, it is an obstacle to the Great Project.

Whether taking the name Liberal, Socialist, Progressive, Central Planner, Democratic-Socialist, and so forth, Statists are determined to dismantle the Second Amendment either through abolition or redefining it out of existence. Until accomplished, it remains the single greatest impediment to The Project begun by 19th century American Progressives and European Socialists. Its central imperative is to bend the will of the individual completely to the volition of the State to plan, control, and regulate every aspect of human existence. And, the Left is the State. Because altering the Constitution has proven un-doable, the Left has chosen to redefine the Second Amendment as they did the Commerce, General Welfare, Necessary and Proper, and Supremacy clauses until they mean the opposite of their intent. For example they claim owning firearms is dependent upon membership in a federal (Army, Air Force, Navy, Marines) or State (“National” sic Guard) standing army. This claim could not be more wrong.4

Proponents and enemies of the Bill of Rights have debated the Founders’ meaning of “militia” ad nauseam. Rehashing it here would seem superfluous. That is, if its enemies were not using mass media, popular culture, and public dis-education to peddle lies conjoined with an American public too intellectually lazy to read and think for itself. As a recovering public school teacher, I can attest to the pervasiveness of this mental lassitude.

Mises Institute’s Ryan McMaken writes that the Founders’ idea of a militia was not one comprised of “unorganized amateurs”, called up by local authorities, to address insurrection or invasion. Instead, it was to consist of men between a certain age range, proficient in arms, possessing some degree of training in military discipline and tactics, a system of choosing officers, subject to call up by State or local authorities, and under civilian control.5 McMaken’s conclusion is problematic. In the 1740s, the French, perennially at war with England, established a large fort at Louisbourg near Cape Breton, Nova Scotia. From there the French threatened New England with invasion and provided safe haven for pirates and “cruisers” who raided its fishing villages and naval commerce. Finding the British unwilling to act, in 1744 New England raised an army of unorganized amateurs including commoners, farmers, merchants, fishermen, and so forth. With little or no experience, these New England boys executed a successful amphibious landing under difficult conditions, besieged the fort for three months, and forced the French to surrender.6 During the French and Indian War, the British could not have defeated the French without the assistance of colonial militia troops, amateur soldiers who fought as local units under American command.7

On 1 October 1768, in a lead up to what became the War of Independence, Britain dispatched 700 troops led by General Thomas Gage from Halifax, Nova Scotia to Boston. His orders were to suppress resistance to British commerce, trading, and tax laws.8 A month later (8 November 1768), King George III declared Bostonians to be in rebellion against English law and government. British political and military leaders drew up plans to subdue the insurrection.9 They employed their standard method of subjugation; round up, jail, and execute the rebellion’s leaders and door-to-door searches for arms and munitions in private hands. Colonials often stored gunpowder in storehouses outside of town due to its volatility. In order to prevent the Red Coats from seizing it, locals formed militias to guard them. In Virginia, Patrick Henry led the Hanover Independent Militia Company comprised of armed locals independent of the Governor’s control. They comprised the nucleus of resistance against British forces. Other colonies replicated this strategy.10

In 1774, British soldiers marched from Boston into the countryside to seize colonial supplies of gunpowder and weapons in Charlestown, Cambridge, Medford, and Salem. Forty thousand militiamen met the British, called “Bloody Lobsterbacks”, by locals, at Charlestown. These amateurs drove them back to Boston without firing a shot.11 British confiscation of private arms led to the “shot heard round the world”, the British march on Concord and Lexington, Massachusetts, to seize arms.12 Among the militiamen awaiting the British attack were farmers, craftsmen, mechanics, gentlemen, laborers, slaves, dairy farmers, and veterans of the French Indian War. Americans gave as good as they got forcing the British back to Boston.13

McMaken contends, “Gun Rights advocates fixate” on the latter part of the Second Amendment, “The people having a right to keep and bear arms shall not be infringed” as the rationale for private ownership of arms separate from militia membership. He asserts the Second Amendment’s purpose was to guarantee that States “would be free to raise and train their own militias as a defense against federal power and as a means of keeping defensive military force available to Americans while remaining outside the direct control of the federal government”.14 He is correct state militias are supposed to be outside federal control but his assertion the militia is the primary focus of the Second Amendment is incorrect. The Second Amendment clearly contains two independent parts that framers could have fashioned into separate amendments. In fairness to McMaken, his purpose was to demonstrate State Militias are to be independent of federal control and that the so-called “National” (sic) Guard is a standing army and a gross violation of the Constitution.

Drafters wrote definitions of a militia into State Declarations of Rights and later into the federal and State Constitutions from 1791 on. They typically refer to “the mass of ordinary citizens, trained to arms” who would be available for call-up by State or local authorities, and to which was often appended an age range for those subject to service. Founding Fathers from Patrick Henry, George Mason, John Adams to Thomas Jefferson made clear the purpose of the Second Amendment was “that every man” be armed.15 Was this not so that the people would be equipped for militia service if needed? True but only in part. The Founders clearly saw that as an auxiliary advantage. However, the stress was that all men possess the right to keep and bear arms and government in no way have the power to infringe on this right or disarm the people. During debates over ratification of the proposed Constitution (1788) at the Virginia Convention, Patrick Henry declared, “The great object is that every man be armed…Everyone who is able may have a gun”. Zachariah Johnson added, “The new Constitution could never result in religious or other oppression because ‘the people are not to be disarmed of their weapons”. Not militias, people. At the Massachusetts’ ratifying convention, Samuel Adams stated, “That the said Constitution be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience, or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms”.16 Again, these rights, freedom of speech, religion, and arms belong to individuals, not states or any other form of organized political entity including militias.

Many States, including Arkansas, Colorado, Missouri, and others specifically state people have an individual right to keep and bear arms and it is not tied to membership in a militia, military, or any form of security force.17 The Founders knew Americans opposed standing peacetime armies (as we have today) and that States were reluctant to cede any of their sovereignty to this new untried federal system of government. They also knew government, like an irresistible force of nature, attracts to it men of ambition, those craving power, and men with no moral scruples. Therefore, they added the militia phrase. States would retain the means to resist federal usurpations of their power and infringement against the liberties of people. Under the proposed Constitution, the federal government, facing a national emergency such as invasion or insurrection, could request the states call up their militias. Governors would send them to federal authorities who in turn would arm, equip, and organize them into a standing army. The States would retain the right to choose officers commanding their militia units. Once the crisis was resolved, militiamen would return to their respective states and mustered out of service. Constitution or not, efforts to “federalize” (actually, “nationalize”) State militias placing them under presidential control began almost at once just as so-called Anti-Federalists had warned.18 The individual right to possess arms was always a separate issue.

English philosopher John Locke’s Treatises On Government were widely read (1689) in the colonies. He argued man had a “natural” (G-D given) right to life, liberty, and property. Inherent in each is the right to the means of defending it.19 Under the supervision of Benjamin Franklin, John Adams, Robert Livingston, and Roger Sherman, Thomas Jefferson wrote the Declaration of Independence.20 Drawing on many widely held philosophical and theological roots; Jefferson wrote that all rights are individual and a gift from G-D. Among them are the right to life, liberty, and the pursuit of happiness (property, wages, and the fruits of one’s labor). Rights imputed by Divinity are inherent in the nature of each individual’s humanity. People are born already possessing these rights. A right to life presupposes a right to the means of defending it.21

The Second Amendment employs the words “right” and “shall not be infringed demonstrating it refers to “a right that is already assumed to exist” (which comports with the Declaration). It does not say, “The people shall have a right to keep and bear arms.” The amendment recognizes but does not grant the right” [emphasis in the original].22 Requirements to join the military, a militia, or engage in a government specified activity in order exercise a right would negate that right. Any regulation, red tape, or hoops one must jump through before accessing a right is a gross infringement and, again, negates it as a right. Governments can in no way qualify a right. No vote by a majority of one’s neighbors to limit a right in any way is legitimate. In addition, people cannot through constitutions or laws, “agree to an infringement on their rights”.23 This is because of the inherency of rights. Only Divinity can alter or abolish rights divinely created. So why does the Second Amendment continue to confound people?

George Mason’s proposed draft of the amendment read, “That the people have a right to keep and bear arms; that a well regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defense of a free state”.24 Madison’s version read, “The right of the people to keep and bear arms shall not be infringed; a well armed and well-regulated militia being the best security to a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person”.25 Madison, like Mason and other Founders, wanted it understood that the right to keep and bear arms is an individual right separate from membership in any form of militia. For example, those objecting to military service on religious grounds, still possessed the right to keep and bear arms. This would not be true had the right been dependent on being in a militia. Madison’s intent “is clear not only from his wording, but also from his notes for his speech proposing the amendment”. He states it pertains to an individual right which his “colleagues clearly understood the proposal to be protective of individual rights”. Massachusetts delegate Fisher Ames wrote that among other rights, that of bearing arms “to be inherent in the people”. Writing under the name “A Pennsylvanian” in the Philadelphia Federal Gazette, Madison’s friend Tench Coxe argued that the delegates wrote the Second Amendment to “guarantee the right of the people to have ‘their private arms’ to prevent tyranny and to overpower an abusive standing army or select militia”. Madison read Coxe’s articles and agreed, the amendment pertained to an individual right.26

So much, did the Founders write about the Second Amendment; its meaning is beyond question. These documents and writings are available to anyone. On what basis can opponents of an individual right interpretation justify their position? Simple. The truth is unimportant. Only the Great Project matters. All narratives, including history, must be made to fit and support it. Like a starfish turning a clamshell over searching for a vulnerability by which to penetrate its defenses, so too do enemies of the Bill of Rights search for weaknesses. They find it in contemporary American’s unfamiliarity with grammatical construction.

It is important to keep in mind, of the Bill of Rights none refers to “States having rights”. Each refers to a right of the people. These are individual rights. To argue the Second Amendment applies only to members of a military organization turns it into a State not individual right. We have clearly seen that was not the Founder’s intention. If the Founders had intended military or militia membership dependency in order to own or possess arms, “Why would they say, ‘the right of the people to keep and bear arms shall not be infringed”? Madison and those who shaped the amendment’s wording “chose to put the militia reference into a dependent phrase” choosing “the weakest possible construction by using the participle (word formed from a verb) ‘being’ instead of writing say, ‘Since a well regulated militia is necessary…” The militia wording’s weak form demonstrates its framers listed it as a right of states. “The main independent clause” of the amendment reads, “The people’s right to have guns ‘shall not be infringed”.27

An independent clause is a stand-alone sentence dependent on nothing. The militia part of the Second Amendment forms a dependent phrase. It cannot stand alone by itself containing a subject, verb, and complete thought. Therefore, it is secondary in importance to the main independent clause. The words; “A well-regulated militia being necessary to the security of a free state” would mean what by itself? The words; “The right of the people to keep and bear arms shall not be infringed” would mean what without the first part of the amendment? People have a right to keep and bear arms. By reversing this order, the amendment’s drafters made emphatic that the independent clause was its most important part. “The Founders correctly intuited that in a bill of rights (list), the last thing the reader should have ringing in his mind’s ear is the absolute prohibition on infringement of the natural right to own guns”.28

If the Bill of Right’s enemies read America’s founding documents and writings, they know the truth. None of that matters. What does matter to them is total disarmament of American citizens. The Great Project cannot culminate until that happens. Toward that goal, the end always justifies the means.

11 Unlike men and women since the dawn of time, those on the Left are stymied when it comes to determining their sex, of which, there are but the two aforementioned options.

22 As with the Marjory Stoned Man Douglass high school “useful idiots,” Emma Gonzalez, Cameron Kasky, David Hogg, et al, the Left cowardly uses kids as stooge props, their youth supposedly giving them and their terribly immature and uninformed rantings an unassailable immunity against critique. Isn’t this what Muslim terrorists do, hide behind children?

33 Martha MacCallum Show, FOX News, 31 December 2019.

44 Sheldon Richman, “Reading the Second Amendment”, The Freeman 2 (February 1998), 112.

55 Ryan McMaken, Mises Institute, 22 August 2018, “Why We Can’t Ignore The ‘Militia’ Clause Of The Second Amendment”, Mises Institute, at https://mises.org/wire/why-we-cant-ignore-militia-clause-second-amendment/

66 Marvin Olasky, Fighting For Liberty And Virtue: Political and Cultural Wars in Eighteenth Century America (Wheaton, Illinois, Crossway Books, A Division of Good News Publishers, 1995), 93.

77 IBID. 97-98, 102-105, 107, 109.

88 Stephen Halbrook, The Founder’s Second Amendment (Chicago, Illinois, Ivan R. Dee Publisher, 2008), 13.

99 IBID. 17-19.

1010 Halbrook, 104-105.

1111 Willard Sterne Randall, Ethan Allen: His Life And Times (New York, N.Y., W. W. Norton & Company, 2011), 8.

1212 Robert Middlekauff, The Glorious Cause, The American Revolution 1763-1789 (New York, N.Y. Oxford University Press, 2005), 272-274.

1313 Randall, 8, Halbrook, 76-79.

1414 McMaken.

1515 IBID.

1616 Stephen Halbrook, That Every Man Be Armed: The Evolution of a Constitutional Right (Albuquerque, New Mexico, University of New Mexico Press, 1984), 73-75.

1717 McMaken.

1818 Edwin Meese III, Matthew Spalding, and David Forte, The Heritage Guide to the Constitution, (Washington, D.C., Regnery Publishing, Inc., 2005), 139-143.

1919 Gary A. Shade, “The Right to keep and Bear Arms: The Legacy of Republicanism vs Absolutism,” at http://www.firearmsandliberty.com/papers-shade/TheRightToKeepandBearArms.PDF.

2020 Clarence B. Carson, A Basic History of the United States, Volume I: The Colonial Experience 1607-1774 (Wadley, Alabama, American Textbook Committee, 1987), 182-183.

2121 Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution (Lawrence, Kansas, University Press of Kansas, 1985), ix, 60-63. See also, Gary T. Amos, Defending the Declaration (Brentwood, Tennessee, Wolgemuth & Hyatt, Publishers, Inc., 1989), 35-74, 117-118.

2222 Sheldon Richman, “Properly Interpreting the 2nd Amendment” Human Events (June 16, 1995), 16.

2323 IBID.

2424 Halbrook, Founder’s Second Amendment, 22.

2525 Shade.

2626 Halbrook, That Every Man Be Armed, 76-77.

2727 Richman, Reading the Second Amendment, 112-113.

2828 IBID.

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Signing On The Dotted Line

Last weekend was Shavuot. In the diaspora it is a two day holiday. I admit it is an emotional holiday for me. I love Shavuot.

The holiday of Shavuot is the day on which we celebrate the great revelation of the giving of the Torah at Mount Sinai, more than 3,300 years ago. You stood at the foot of the mountain, as did your grandparents and great-grandparents before them. The souls of all Jews, from all times, came together to hear the Ten Commandments from G‑d Himself.

What was involved?

Moses ascended Mount Sinai, and G‑d spoke to him the following words (Exodus 19:3-6): “So shall you say to the house of Jacob and tell the sons of Israel. You have seen what I did to the Egyptians, and [how] I bore you on eagles’ wings, and I brought you to Me. And now, if you obey Me and keep My covenant, you shall be to Me a treasure out of all peoples, for Mine is the entire earth. And you shall be to Me a kingdom of princes and a holy nation.”

Moses returned from Sinai and called for the elders of the people and put all these words of G‑d before them. Unanimously, with one voice and one mind, the people answered: Naaseh Venishma – “Everything G‑d has said, we will do.” Thus they accepted the Torah outright, with all its precepts, not even asking for a detailed enumeration of the obligations and duties it involved

So last Sunday, June 9, I went to my synagogue to hear the Ten Commandments and reaffirm the covenant with G‑d and His Torah. There are actually 613 commandments, like little holy bread crumbs helping you find your way to G-d. But within the 10, they contain kernels from which the others come.

Number 6 is the one that seems to confuse people. It does not say “Thou shalt not kill”. It says “You shall not murder”. Which is a very different kettle of fish.

I also note it does not say that “You shall not murder by a so-called assault weapon” “You shall not murder using a adequate capacity magazine” “You shall not murder using a shoulder thingy that goes up” “You shall not murder using a ghost gun” “You shall not murder if you are in a citizen registry” “You shall not murder if your ammunition is registered” “You shall not murder if you are taxed so high you can’t afford to defend your family” “You shall not murder with a knife” “You shall not murder with an ax” “You shall not murder with a screwdriver” “You shall not murder with a rope” “You shall not murder with a car” “You shall not murder by drowning” “You shall not murder by poison” “You shall not murder with a chain” “You shall not murder with your hands”.

Just a very simple “You shall not murder”.

And yet, our politicians have put who knows how many gun control laws on the books that only law-abiding citizens will obey in the first place. Criminals are not the least affected by laws, the more the merrier for them.

We can live by G-d’s law or die by man’s I heard a Rabbi say.

So, for your information, here’s a handy clip out guide to the current crop of aspiring tyrants running as the Demoncratic candidates for President of the United States. Where I didn’t come up with a snazzy nickname for one of the aspiring tyrants, feel free to suggest one. Anything in italics is just my comments.

Aspiring Tyrant Citizen Control Scheme
Joe “Sniffy” Biden Obligatory Universal background checks

National Database

Obligatory “Assault weapons” ban

High (adequate) capacity magazine ban

Opposes protecting school children

Cory “Spartacus” Booker Universal background checks

Ban on “assault weapons” & Bump Stocks

Prohibition of standard-capacity magazines

Establish a federal registry of guns

Federal registry of gun owners

You have to apply to Washington for permission,reapply every five years Inform the executive branch of each weapon you own in your home

Use of the error ridden terrorist watch list to prohibit gun ownership.

Allow lawsuits against gun manufacturers.

“Red flag” gun confiscation

Bernie Sanders the millionaire communist A nationwide ban on assault weapons

Expanded background checks

Ban on “high capacity magazine over ten rounds.”

A “common sense proposal on guns that will have the support, not of everybody, but a significant majority of American people.”

“We need strong sensible gun control, and I will support it,”

“I support what President Obama is doing in terms of trying to close the gun show loopholes.”

Mostly vague

Elizabeth “Fauxcahontas” Warren Obligatory “Assault Weapons” ban

Obligatory “Universal background check”

Mostly vague

Kamala Harris Vows to use executive action on “Day 1”

Reminiscent of Valerie Jarrett’s statement obama would be “ready to rule from Day 1”

Direct the ATF “to promulgate a regulation” that makes it so that “if you sell five or more guns for profit a year, you will be considered a ‘dealer’ and required to perform background checks.”

Ban Semi-automatic firearms

Direct the ATF “to promulgate a regulation” that makes it so that “if you sell five or more guns for profit a year, you will be considered a ‘dealer’ and required to perform background checks.”

Require universal background checks

Ban high-capacity ammunition clips

Make gun trafficking a federal crime (no mention if this applies to the ATF as well)

Prohibit those convicted of a federal hate crime from buying firearms.

Repeal the Protection of Commerce in Arms Act

Robert Francis “Beto” O’Rourke Obligatory Universal background checks for gun sales

Obligatory weapons ban

“Red-flag” gun confiscation laws

Close the boyfriend loophole, the Charleston loophole, the gun show loophole, the online loophole<<gibberish

Fully invest in the Centers for Disease Control and Prevention and research into gun violence<<taxpayer fraud

Pete Buttigieg Obligatory Universal background checks for gun sales

Obligatory weapons ban

National gun-licensing system

Eric “Duke Nukem” Swalwell Gun Confiscation

Drop nuclear weapons on American Citizens

You know, on Shavuot, we reaffirm our dedication to G-d and living according to his Torah commandments. I would suggest that to be a candidate for the office of President, the candidates of all parties need to reaffirm their dedication to our Constitution and the Bill of Rights. All of them, every single one. Including the Second Amendment.

But then, see my comment above about criminals and laws. The laws don’t apply to them, right?

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Strictly Speaking

I’d like to thank victim-disarmament advocate Jackie Stellish for admitting that gun control laws are unconstitutional.

The proposed amendment is not the same – ours wants “strict scrutiny.” The “strict scrutiny” language will make it much easier to bring and win legal challenges to Iowa’s gun laws.

It requires “strict scrutiny” be applied to any firearms laws, therefore much more likely a court could strike down important state laws that protect public safety, such as Iowa’s background check, concealed-carry and permit-to-purchase laws.

The concept of strict scrutiny is a binding precedent set by the Supreme Court in United States v. Carolene Products Company, 304 U.S. 144 (1938). More specifically, the infamous Footnote Four.

“There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth….”

I could stop there, having shown that — no doubt to Ms. Stellish’s dismay — strict scrutiny must be applied to any gun control law, as they infringe upon the Second “of the first ten amendments.” I needn’t show what the effect of such scrutiny would be because Stellish has already conceded that gun control laws will fail upon close examination. One might wonder, rhetorically, of course, exactly why Jackie Stellish is deliberately and overtly advocating for the violation of human/civil rights through unconstitutional laws. I seem to recall something about “conspiracy against rights.”

But this is educational, and others may not be so insightful as Stellish. I continue.

A law subjected to strict scrutiny must pass three tests. All of them.

  1. It must be justified by a compelling governmental interest.
  2. The law or policy must be narrowly tailored to achieve that goal or interest.
  3. The law or policy must be the least restrictive means for achieving that interest: there must not be a less restrictive way to effectively achieve the compelling government interest.

Take H.R. 8 Bipartisan Background Checks Act of 2019 for example.First, it infringes upon a constitutionally enumerated right, so right off strict scrutiny is automatically required. Now the tests.The compelling governmental interest is “to ensure individuals prohibited from gun possession are not able to obtain firearms.” Presumably the intent would be to protect life, one of the Declaration of Independence‘s unalienable rights which “Governments are instituted” to secure.

Test one passed.

Is the law narrowly tailored to achieve that goal? No.

  • It requires everyone wishing to transfer a firearm to prove they aren’t prohibited, not just those who are.
  • It targets all transactions even though government reports confirm that prohibited persons most commonly acquire firearms through unlawful channels (primarily the black market and theft).
  • By far the most commonly used in crime type of firearm is handguns. This bill requires checks for all firearms.
  • Requiring everyone to prove they are not prohibited persons (rather requiring the government to prove they are) is presumption of guilt without due process, and a prior restraint on rights.

Test two failed.Is the law the least restrictive means available? No.

  • One could create a toll-free number which any seller could call, input the buyer’s social security number to an automated system, and get an instant pass/fail, and a control number. Instead, both must travel to an FFL, pay a fee, fill out a 4473, the FFL enters the firearm in the bound book, and makes the NICS call. This creates a permanent record of who has what.
  • One could avoid regulating 100 million gun owners, and limit the regulation to prohibited persons. Via NICS, the government already tracks them. Those on parole/probation are already subject to searches, and the dangerously mentally ill shouldn’t be on the street anyway.
  • Since the black market is the primary source of crimes guns, one could ignore other transactions, and concentrate on eliminating that market with existing laws. Firearms trafficking is illegal, after all.

Test three failed.

H.R. 8, if passed and signed would be unconstitutional. Not to mention stupid, if the real goal was to reduce gun violence. But we know what they want.

Shall we apply strict scrutiny to a few more victim-disarmer wet dreams?

“Assault weapon” ban:
1. Interest – Protect life. Check.
2. Narrow – Bans large class of implements rarely used in violent crime, not just the handguns used predominantly. Fail.
3. Least restrictive – Ban large class of weapons commonly held for defense, when they could simply use sentence enhancement for unlawful use. Fail.

The ban would be unconstitutional.

Safe storage”
1. Interest – Protect life. Check.
2. Narrow – Requires all defensive tools to be “secured,” even when unnecessary. Fail.
3. Least restrictive – One could set penalties for intentionally (to meet mens rea requirements) allowing access by a prohibited person or unsupervised child and bad things actually happen. Fail.

The ban would be unconstitutional.

Please note that in HELLER the Supreme Court ruled that “safe storage,” even in the form of a trigger lock, fails any of the standards of scrutiny the Court has applied to enumerated constitutional rights”, not just strict scrutiny. Defense attorneys, take note.

Permit-to-purchase:
1. Interest – Protect life. Check.
2. Narrow – Similar to background checks. Targets everyone, not criminals. Fail.
3. Least restrictive – Redundant, since FFL purchases — as yet — require NICS checks. Fail.

The ban would be unconstitutional.

The only reason these rights-violating laws stand is the appointment of judges who actively refuse to perform their constitutional and judicial duty to apply strict scrutiny to laws infringing the Second Amendment.

 

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Raise Up For Us Wise Judges

16 ויקם יהוה שפטים ויושיעום מיד שסיהם׃ 17 וגם אל שפטיהם לא שמעו כי זנו אחרי אלהים אחרים וישתחוו להם סרו מהר מן הדרך אשר הלכו אבותם לשמע מצות יהוה לא עשו כן׃ 18 וכי הקים יהוה להם שפטים והיה יהוה עם השפט והושיעם מיד איביהם כל ימי השופט כי ינחם יהוה מנאקתם מפני לחציהם ודחקיהם׃ ~~ Shoftim 2:16-18

16 Then the Lord raised up judges, who saved them out of the hand of those who plundered them. 17 Yet they did not listen to their judges, for they whored after other gods and bowed down to them. They soon turned aside from the way in which their fathers had walked, who had obeyed the commandments of the Lord, and they did not do so. 18 Whenever the Lord raised up judges for them, the Lord was with the judge, and he saved them from the hand of their enemies all the days of the judge. For the Lord was moved to pity by their groaning because of those who afflicted and oppressed them.~~Judges 2:16-18

Judges have been in the news a lot lately. For instance the hearing on Judge Neil Gorsuch for the Supreme Court.

Several of the same senators who helped unanimously confirm Gorsuch to the 10th Circuit Court of Appeals in July 2006 are now railing against his nomination by President Trump to the highest court in the land.

But I suppose it really didn’t matter who President Trump picked, the Demoncrats planned to protest and showed up with pre-printed signs to do so. But as is pointed out, since they didn’t know WHO he was going to nominate, the just left the spot for the name blank and filled it in with a magic marker.

Well, that certainly sends a clear message you are standing firmly on principle!

Then we have the left wing courts in Israel that resulted in Jewish families being thrown from their homes, for the second time, because of questionable evidence from a left-wing group based on questionable laws. Or questionable patchwork of laws perhaps.

Then you could have your life ruined by the ruling of a left-wing court like Elor Azariya.

If ever there has been a time our countries could use some wise judges, now would be good. For some reason, people think it is fine now to riot, destroy personal property and physically attack people in the name of “peaceful protest”. I saw a meme on Facebook that said “Love Trumping Hate involves a lot more arson and assault than I expected”.

For some reason, groups of people, large groups of people, have reckoned it is safe for them to do these sorts of things. It’s fine for them to block roads, attack people and vehicles with no consequences. Well, not to them anyway. The people they attack, they aren’t so much worried about. It’s bad enough that some states and proposing legislation that basically, says if you accidentally kill a protester you will not be prosecuted.

But these protesters only want what’s best for humanity, the environment and think President Trump will ruin the world and they care so much about every living being?

Horse feathers.

Yet another mob of around 200 people blocked another ambulance necessitating the EMS crew to perform in the field a procedure that is normally done in the hospital. The police attempted to move the leader off the road so the ambulance could get through. He refused. The comments under the article are interesting, some commenting that in certain cities the Judges would let him off without even a fine. Have you seen some of the videos of masses of people swelling up onto freeways? They don’t care what kind of wrecks they create when people try to avoid hitting them. They don’t care about the people their actions may kill. I can see why different states are talking about such laws. Police have been told to stand down by ideological politicians and Judges have not followed the law.

Being a Judge is a big responsibility. You have the lives of innocent people in your hands. Ruth Bader Gargoyle (as someone I know calls her) has demonstrated more than once that she has no desire to follow the Constitution, and has shown poor judgment more than once. She also doesn’t keep her word. She is still on the court and hasn’t left the country.

The we have the Judge who halted the travel ban from seven countries that are known for creating terrorists. The Judge it seems, either lied, or was ignorant of facts, and history too, one might add. Robart said there had been no terrorist attacks, there have been 78.

And as Rush Limbaugh points out, despite what people think about Robart,

And remember Judge Robart is not a Republican. He’s a Republican-appointed judge, but he is a left-wing judicial activist actually chosen by Patty Murray, the senator.

Yes, sad to say, the safety of innocent people rests on decisions made by such as these. Todd Starnes makes the point Judges need extreme vetting.

They seem to think that anyone not on the left is a threat. And I’m sure their judicial opinions would be based on this false logic. For instance, could you imagine being a conservative, or a concealed carry person coming before this “Judge”. It’s not photoshop, I promise.

Impartial Judge or lack of judgment?

Travis County (Texas) Judge Sarah Eckhardt started her session on January 24 by putting on the pink knitted “pussy” hat. Yeah, boy howdy, nothing says I’m going to be a fair impartial judge and do my job like starting out your court session by putting on a pink “pussy” power hat.

Some Judges to actually try to use some sense when they hear cases. Remember the story I brought you about Cox and Kettler involving the sound suppressors in Kansas? Well, that case has been heard.

The sentence handed down by U.S. District Judge J. Thomas Marten still leaves intact the federal felony convictions against Shane Cox and Jeremy Kettler, both of Chanute, Kansas. Cox, 45, was given two years of supervised probation, and Kettler, 28, got one year of supervised probation.

Well, yeah, goodie and all that, but the law said:

The Kansas Second Amendment Protection Act, which passed in 2013, says firearms, accessories and ammunition manufactured and kept within the borders of Kansas are exempt from federal gun control laws.

Marten told the two men that while state law is not available to them as a defense, it is a factor he can take into account at their sentencing.

“I am satisfied you both had a good faith belief that you are protected by that statute,” Marten said.

So, WHY Judge, didn’t it mean what it said? That’s what Cox did. Made items for residents of Kansas.

Who is on the Supreme Court will matter for a longgggg time. Liberals will hate anyone that is not going to view the tattered Constitution as a “living breathing document” so they can kill it. There will be Second Amendment cases come before the court, there will be civil rights cases come before the court. Who would you rather see on the court, a Judge such as Neil Gorsuch or Sarah “Pussy hat” Eckhardt?

Next time Judges are up for election in your state, perhaps check with your local grassroots Second Amendment Rights group, see if they have recommendations. And seriously, who wants to show up in court with a joke like Sarah Eckhardt? If I were the defendant I’d be thinking that would be cause for a re-trial right there. But, I’m not a lawyer, nor do I play one on TV.

And now the 9th Circuit Court of Appeals has ruled. They have ruled politics and ideology are more important that legal precedence and American lives.

I wonder who we could ask if they think there is a likelihood of terrorists coming in with refugees? Oh, how about Bashar Al-Assad of Syria? The whole column is here.

If you are familiar with Mark Levin he’s a lawyer with a top radio show, and here’s his take on the 9th Circuits decision.

 

In two minutes, A Time Lapse of Terror from the 1980s to November 2015. Good job 9th Circuit, I’m sure our odds are fine, no worries, nothing to see here, move along.

Please G-d, raise up for us wise Judges!

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Using the Myth of the Constitution, Part 4: What to do to make the Myth REAL

by Historian

In Part One of this series, I have discussed in broad terms the flaws of the present Constitution, link HERE.

Part Two discussed the specific shortcomings of the US Constitution, and there were a number of thoughtful comments that added significant value. Link HERE.

Part Three covered suggested steps to be taken and touched on the importance of ENFORCEMENT of the Constitution as the highest law of the land. Link HERE.

This installment is about making the myth of the Constitution real, about how we can go about actually enforcing the Constitution.

The idea of Constitutional enforcement has been an undercurrent in American politics for a long time, almost as long as the Constitution has been in force. Lysander Spooner in his essays entitled “No Treason” was not the first person to point out this issue, nor was he the last. Yet after over 200 years of increasingly obvious issues with the Constitution, we still have no enforcement clause.

Moreover, very few people are discussing what I consider to be the single most egregious flaw in the Constitution. Neither Michael Farris in his push towards an Article 5 Constitutional Convention nor Mark Levin in his book “The Liberty Amendments” promote Constitutional ENFORCEMENT, preferring rather to propose adding still more unenforceable amendments to an unenforced, and unenforceable Document. The only person I know that pushes the idea of enforcement of the Bill of Rights and the Constitution as the highest law of the land is Neil Smith. Despite endless lip service about Constitutional Government, few people out of government, and nobody at ALL in government seems to actually want to enforce The Document. Why is that? Cui Bono?

Well, not having an enforcement clause sure makes looting the taxpayer a lot easier, and it also makes it a lot easier to “enact a multitude of laws and eat out our substance.” A country like ours, where over half of the people working actually work for one governmental agency or another, either directly or indirectly, does provide considerable incentive for those folks to vote in favor of keeping their jobs funded. Enacting an enforcement clause is going to be damned difficult to do; enforcement of the Constitution will break lots of rice bowls. Both the Demopublicans and Republocrats see significant benefit in maintaining the illusion of legitimacy provided by the present myth.

Oddly enough, however, given the things the ruling oligarchy in this country have recently done, like having our military parade in red high heels and importing large numbers of 7th century barbarians in the hope that Western civilization will benefit therefrom, I’m hopeful that the right combination of stimuli can make the average American politician vote for damned near anything, as long as the carrot of re-election is dangled temptingly enough in front of them. But in any case, before we get hung up on the “how,” let’s think first about what an enforcement clause ought to look like. So what should an Enforcement Clause do? I have been thinking about this over the last two years, and here are my thoughts:

One of the problems we have with the current legal system is that it is a form of guild socialism. That is, if you do not belong to the appropriate guild, and pay the guild tax, you do not get to work in that profession. Guild socialism was common in medieval times, and was an early version of merchantilism, acting to restrain market entry and limit competition. American exceptionalism was due in part to getting away from those medieval ideas, and allowing anyone who wanted to enter the market to do so. Unfortunately, the lawyers managed to maintain their guild after the Revolution, and it still rides us today. As an aside, the last time I checked, I believe that there are only a few states that still allow people to read the law and take the Bar exam without having graduated from an accredited law school, one of which is the Commonwealth of Virginia. (see links here and here.)

With regard to the broader issue of Constitutional enforcement, the problem is that it is totally impractical, (in reality not possible,) for a non-attorney at present to act to strike down an unConstitutional law, and the only way to gain ‘standing’ is to break the law and place yourself at risk of conviction. Given that the overall conviction rate for Federal indictments runs in the high 90% range, why would any sane person do such a thing when the deck is so obviously stacked against the common citizen? The 1934 GCA which led to the case of US v. Miller, where the Federal Government won on appeal because the plaintiff failed to show up at the Supreme Court, is just one example of such issues; there are probably tens of thousands. If we are to have true enforcement of the Constitution, we have to be sure that access to whatever mechanism is developed is not restricted to the privileged class of lawyers, and that people who perceive an infringement on the Constitutional limits on Federal authority do not have to place themselves at jeopardy to seek correction. Any American must have the right to challenge the acts of every level of government which purports to have jurisdiction over them.

The second issue I see is that Constitutional issues get bumped up the ladder, taking years of time and gobs of money before the Supreme Court rules on the matter at hand……or doesn’t, in which case confusion reigns for another stretch of time, and the poor suffering taxpayer who got screwed by the government in the first place gets ignored. There needs to be a process that provides PROMPT relief. “Justice delayed is Justice denied,” right? If the determination is made at the local level that there has been Constitutional infringment, or if there is any significant delay, there needs to be immediate action to provide relief from the unConstitutional law or regulation, which according to precedent is now void, but which in practise never goes away. That stay or injunction ought to restrict the government, at whatever level the action is brought, from acting until the issue is finally resolved at whatever level it ends up being resolved. Moreover, if the case is appealed, and the higher court finds in favor of the plaintiff, the stay should be required to be extended to the entire jurisdiction of the court holding in favor of the plaintiff. This puts some teeth into enforcement, and ought to help correct the present tendency of Federal attorneys to do the legal equivalent of the “Rope-a-dope” and to draw out the proceedings and attempt to bankrupt the plaintiff by appealing any time they get an adverse ruling.

The third issue is that nobody is held responsible. There is no personal accountability on the part of any of the myriads of Federal, State, or local governmental elected or appointed officials, agents, or employees for their misfeasance or malfeasance. Those who violate the Constitution do so with impunity. That DEFINITELY needs to change, and those convicted of unConstitutional activity under color of law should suffer for it, both civilly and criminally. On the civil side, the costs of the legal action should be assessed against the person or persons involved in the infringement, personally, and they ought to be discharged from their position and stripped of their wealth, as well as salary, benefits and pension, and any other assets they possess.

On the criminal side, deliberate infringement of the Constitution ought to be a felony, and any such infringement resulting in loss of life, directly or indirectly, ought to be punished severely. One could argue that such subversion of the Constitution and violation of rights under color of Law ought to be treated as treason, with the death penalty available, but in any case, any governmental employee, representative, or agent should be liable for their actions.

So there is my conceptual list of what an Enforcement Clause for the Constitution ought to do. Constitutional Enforcement ought to:

  • Be available to any citizen of these united States;
  • be resolved promptly, with the presumption in case of delay in favor of the plaintiff, and with stays or injunctions against the unConstitutional law or regulation required;
  • Those who promote or enact such rules or legislation should be held accountable for the damage they cause and the costs required to address the issue.

Next time, I will discuss how this might be accomplished. In the mean time, thoughts or constructive criticism of the above are welcomed.

With Regard to all who serve the Light,

Historian


(Originally published at Views from Liberty Hollow.)


Ed. note: This commentary appeared first on TZP’s weekly email alert. If you would like to be among the first to see new commentary (as well as to get notice of new polls and recaps of recent posts), please sign up for our alert list. (See sidebar or, if you’re on a mobile device, scroll down). Be sure to respond when you receive your activation email!

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