Witness a bizarre action by 4th Circuit, as they spontaneously hold over Maryland’s Assault Magazine Ban for an en banc hearing..
USA – -(Ammoland.com)- I am writing this letter because in a bizarre action by the 4th Circuit, rather than send the Maryland firearms and magazine ban case back to the lower court as ordered where the 3-judge panel in a majority decision instructed that this case must be judged under strict scrutiny which basically mean that the law would almost certainly be declared unconstitutional (which it actually is, and which I will present that case in what follows), a majority of the 4th Circuit pre-empted that order, apparently before even approached by politicians desiring to disarm its public, and decided to hear the case en banc.
One can only presume it is because gun owners really objected to that result of the three-panel.
It is fashionable these days and unfortunately for liberty, for some time now, to believe that the Constitution itself is meant to be interpreted and is fluid—which means that there is no standard and that the Constitution and laws are whatever the ruling elites decide it is.
Prayer in school was lost on an Orwellian twist on “Congress shall pass no law respecting the establishment of religion,” where the restriction was 1: on Congress and 2: designed to prevent a preferred national religion; states were free to do as they pleased and did until the 1830s where it simply became impractical.
The view that the meaning of the Constitution is fluid, is critical to so-called “progressives,” to impose change on a nation (with the idea that people will get used to the change and not view these as a series of “intolerable” acts which in my opinion will lead to a civil war—and there are good reasons to believe one is coming) and further the accumulation of power over each person, and is necessary to shape society to conform to the image they have for that society.
The result is the continuing loss of individual liberty and transfer of power to government generally and to the Federal government in particular.
Such a view would not be acceptable to our founders who believed in rugged individualism and liberty. And while it is certainly true that not everyone does well in a free society—that is more often the result of their own choices and not the choices of others. But even if it were, freedom is always the preferred state.
I realize many of you reading this are in fact such so-called “progressives” who have generally failed to realize that your function is not to assist in transferring power to government or securing government interests, but in securing individual rights and protecting those rights from encroachment by government but without artificially creating bizarre rights (gay marriage, the right to kill unborn humans, etc…things that have no historical recognition)
And with regard to understanding the meaning of the Constitution, Thomas Jefferson in his June 12th letter to William Johnson wrote:
“On every question of construction carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates and instead of trying what meaning may be squeezed out of the text or invented against it, conform to the probable one in which it was passed.”
In other words, the Constitution says what it means and means what it says.
The issue in the Maryland firearms and magazine case is whether it is to be judged under intermediate or strict scrutiny. First let us look at the actual amendment:
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
A great deal of false interpretation has been written on these words. First we will look at its structure. The sentence is composed of a prefatory subordinate dependent clause and an independent clause. The prefatory, dependent clause does not place any limits on the main independent clause which is a statement of an individual right.
It must be an individual right because only natural persons possess natural rights; corporations and governments do not have natural rights—they possess only powers. People however may hold or possess powers, but only natural persons have rights!
The dependent clause offers one reason for specifically enumerating the natural and pre-existing right to keep and bear arms—it is not the sole reason.
There is also the misunderstanding of “well regulated” and “militia.”
In 1787, the primary meaning of “regulate,” was: “to make regular,” or “to adjust so as to ensure accuracy of operation,” or to “put in good order.”
A person in 1787 with a broken clock that was not keeping time might go to a tinker and ask him to regulate his clock; meaning to put it in good working order so that it keeps proper time.
In the case of the Second Amendment, “well regulated,” basically means that they can do their job well—that is to say, shoot well—that they are well trained.
Whether applied to the Commerce Clause or the Second Amendment, it means to make properly operational—it doe not mean “control or authority over.” Such a meaning of control was used to usurp power not enumerated in the Constitution to the Federal government.
Who are the militia?
The militia referenced in the Second Amendment is not the professional military. We actually have it properly defined in Title 10 of the USC, Chapter 13, Section 311(b)(2), a remnant of an earlier time that knew the meaning. Section 311 in its entirety:
(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
It is instructive, not only to see who the militia are as referenced in the Second Amendment, but also that the people are meant to be armed and for the purpose of defense against tyranny:
“The power of the sword, say the minority…, is in the hands of Congress. My friends and countrymen, it is not so, for The powers of the sword are in the hands of the yeomanry of America from sixteen to sixty. The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be tremendous and irresistible. Who are the militia? Are they not ourselves? … Congress has no power to disarm the militia. Their swords and every terrible implement of the soldier are the birthright of Americans. The unlimited power of the sword is not in the hands of either the federal or state governments but where, I trust in God, it will always remain, in the hands of the people.” ~ Tenche Coxe, Feb. 20, 1788
Look at that last line: “The unlimited power of the sword is not in the hands of either the federal or state governments but where, I trust in God, it will always remain, in the hands of the people.”
To what end the right to keep and bear arms?
Tenche Coxe elaborated:
“As civil rulers, not having their duty to the people, duly before them, may attempt to tyrannize, and as the military forces which shall be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article in their right to keep and bear their private arms.”
One more example is in order.
“The supreme power in America cannot enforce unjust laws by the sword, because the whole body of the people are armed, and constitute a force superior to any band of regular troops.” — Noah Webster, An Examination into the Leading Principles of the Federal Constitution Proposed BV the Late Convention (1787).
It is pretty simple, really.
Furthermore the Bill of Rights does not grant any rights—the rights are assumed, being pre-existing and natural rights. The purpose of the Bill or Rights, according to its own preamble is to restrict government from interfering with those rights. In the case of the Second Amendment, the prohibition upon government is total. “Shall not be infringed,” means the government has zero powers to regulate the keeping and bearing of arms but especially applies to any and all bearable arms that soldiers would carry, including destructive devices such as grenades; machine guns, RPGs, shoulder-launched Stinger missile systems (albeit that only the very wealthy could affords such weapons as RPGs or Stinger systems)—all of them. Even taxation is forbidden as a burden on the cost of procurement.
It is not even an issue of “scrutiny,” as government is wholly forbidden—there are no exceptions for government even remotely implied.
It is instructive to examine US v Miller (1939) in their opinion:
“The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.”
The court was not aware that short-barreled shot guns were in fact used in military operations (“in common use at the time,” by military, as they still are and also by police as well)
In fact the government prosecutors were well aware of the military used of short-barreled shotguns, having been rebuked by the lower court because at least one judge was quite familiar with such uses of short-barreled shotguns, but did not write this in the lower court opinion and SCOTUS judges at the time were not aware of the common military usage.
Furthermore in US v. Miller, they wrote in the opinion:
“The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. ‘A body of citizens enrolled for military discipline.’ And further, that ordinarily, when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.”
In common use at the time refers to those weapons that the military used. That is the true meaning. If the soldier carried it, it was a protected device. And truthfully, every type of weapon has seen military use: matchlocks, flintlocks, percussion caps, revolvers, bolt action, semi-automatic and machine guns (full automatic), shotguns and including short barrels have been or remain as military “militia” weapons. They are not “unusual.” No weapons used by soldiers could be considered as “unusual,”—dangerous, of course—any weapon is dangerous.
It is worth looking to William Rawle (1759-1836) who was a US District Attorney in Pennsylvania and who wrote:
“The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to Congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretense by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.” — William Rawle, A View of the Constitution 125-6 (2nd ed. 1829)
Additionally, in U S v. CRUIKSHANK, 92 U.S. 542 (1875) 92 U.S. 542 we find:
“The right there specified is that of ‘bearing arms for a lawful purpose.’ This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.”
Government may use “public safety,” as the excuse to disarm or under arm the American civilian population, but the real goal is to ensure that no matter the tyranny imposed, that the civilian population will not have the necessary arms to overthrow that unconstitutional government to restore the constitutional republic.
What good is being alive if one is a slave to a statist government, no matter how safe?
Certainly, overthrowing a government is never going to be considered by any government whether it is good or evil as legal, but our founders certainly recognized it as a possible right and more importantly as a duty under certain circumstances as clearly indicated in the Declaration of independence where we find:
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights,…That to secure these rights, Governments are instituted among Men,…That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, … Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; …But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government….”
How convenient for any government if it makes possession of militia weapons illegal so that no effective militia could form to perform such a critical duty. And as it is meant as a last resort, it should not be a frequent occurrence but it should not be impossible as it would be if the civilian population is disarmed of militia weapons.
And with regard to “safety,” to exercise prior restraint on innocent people because someone may abuse a right and kill dozens or hundreds at once is inexcusable as the risk to tyranny is too high to allow such prior restraint and individual freedom is too important. Other means must be found if public safety is the true goal (sadly it is not)—and there are other means—to minimize these occurrences, but none must in anyway ever bypass due process in any manner.
I will close with these three observations:
“Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.” –William Pitt (Earl of Chatham), speech in the House of Lords, November 18, 1783
“Good intentions will always be pleaded for every assumption of authority. It is hardly too strong to say that the Constitution was made to guard the people against the dangers of good intentions. There are men in all ages who mean to govern well, but they mean to govern. They promise to be good masters, but they mean to be masters.” –Daniel Webster (1782-1852)
“The whole of the Bill [of Rights] is a declaration of the right of the people at large or considered as individuals… It establishes some rights of the individual as unalienable and which consequently, no majority has a right to deprive them of.” –Albert Gallatin (1761-1849) of the New York Historical Society, October 7, 1789