By Roger J. Katz, Attorney at Law and Stephen L. D'Andrilli
New York, NY -(Ammoland.com)- The Second Amendment Guarantee act should, as the title of the act asserts and as properly understood, do nothing more nor less than return, to the American people, the fundamental, natural right slipping from them: The right of the people to keep and bear arms.
What misbegotten congress and many overzealous state legislatures have wrought must be corrected
Three scenarios that require constant vigilance on the part of Americans:
- One: Sometimes legislative acts have unintended consequences, resulting in the loss of one's fundamental rights and liberties or resulting in an abridgment of or an attenuation of those fundamental rights and liberties, if not in an outright loss of one's rights and liberties.
- Two: At other times legislators enact laws that, although directed to accomplishing one goal, not designed to impact fundamental rights and liberties, nonetheless, when implemented, have a negative impact on the exercise of fundamental rights and liberties.
- And, three: At times–as is most often the case–legislators operate with abandon, drafting and enacting laws that are directed specifically to curtailing americans' fundamental rights and liberties.
When State Legislatures and Congress propose legislation—legislation that may touch upon fundamental, natural rights codified in the Bill of Rights—there exists a possibility that the proposed legislation will negatively impact the citizen's exercise of a fundamental right, protected by the Bill of Rights. The danger of an abridgment of or attenuation of a citizen’s rights and liberties may occur through accident or through invidious design. Either way, a danger to the rights and liberties of American citizens is ever present in any legislative action. Americans must, therefore, be ever vigilant of that possibility to preclude elected officials and bureaucrats from undermining Americans' rights and liberties.
If an abridgement of a citizen’s rights and liberties occurs through accident, as a result of careless drafting of legislation, this tells us that State legislators and U.S. Congressmen must be conscientious in drafting legislation to avoid unintended negative consequences and must be mindful of bureaucratic overreach that operates to curtail a citizen’s rights and liberties—bureaucratic overreach that operates beyond the extreme of legislation–beyond the parameters of seeming enabling legislation that, on the surface, may suggest, in the rules bureaucrats promulgate to effectuate Legislative intent, that bureaucrats have carte blanche to promulgate rules abridging constitutionally protected rights and liberties, when, in fact, they do not have such authorization and when, in fact, it was never Congressional intention or a State Legislature's intention to cede to federal and State bureaucrats such authority to override Constitutionally protected rights and liberties.
If, however, State legislation or Congressional legislation directed to accomplishing one objective, has anticipated indirect and negative impact on a fundamental right, what does that tell us? It tells us that legislators are operating deviously—clearly out of normative bounds of duty and decency, machinating behind the back of voters, and in clear violation of their oath of Office. In that event, those legislators who manipulate legislative powers to destroy the Bill of Rights must be called out for their actions and that means impeachment.
Most often, though, those individuals drafting federal or State laws do so with clear cold, calculated deliberation, with a categorical objective in mind, one that cannot be mistaken for something else or for something less, namely, the goal of creating law that has, at its salient purpose, impinging fundamental rights and liberties and, in fact, infringing fundamental rights, specifically. Legislation is expressly drafted with that goal in mind. In these circumstances, legislators do not attempt to hide their intentions. In such circumstances, legislators act with cheerful abandon and with a very heavy hand, demonstrating little concern over whether they have overstepped acceptable legal and moral bounds when impinging on or infringing, altogether, a fundamental right—if we presume, from the get-go, that there are such things as acceptable legal and moral boundaries in the matter of curtailing an American’s exercise of his or her fundamental rights and liberties But, to be sure, there exist none! Still a rationale—really an excuse—for such legislation is provided, trumpeted by legislators' willing accomplices in the mainstream media. The American public must not allow such legislators to remain in Office.
In the last case presented here, the excuse, posing as a legitimate rationale, that is invariably given, is that federal or State legislation restricting the American citizen's exercise of this or that fundamental right and liberty serves or promotes a compelling State interest. That is the test the United States Supreme Court has devised to ascertain the constitutionality of a State or federal statute when the very core of a natural, fundamental right is impinged on or infringed outright.
In practice, courts of competent jurisdiction that share the sentiments of government, as expressed in a State or federal regulation, will often, although, fortunately, not invariably, find the offending regulation constitutionally permissible even if, on logical and legal grounds, it isn’t.
Government, whether State or federal, must, nonetheless, articulate its compelling interest to restrict the people’s exercise of a fundamental right when a plaintiff, that has standing to sue, directly challenges the constitutionality of a State or federal statute or local governmental regulation or ordinance.
Rarely do we see Congress or State Legislatures enacting legislation impacting natural, fundamental rights that serve to strengthen the right as codified in the Nation’s Bill of Rights. Congressman Chris Collins; bill, the Second Amendment Guarantee Act, is one example of legislation the intent of which is to strengthen rather than to weaken a fundamental right: the right of the people to keep and bear arms. But, when all is said and done, such legislation should be unnecessary anyway; for, a fundamental right—namely any right codified in the Bill of Rights—has no parameters and legislation should never be enacted to create parameters unless, if done so very, very circumspectly. For, example, illegal aliens do not have the right to keep and bear arms, for they are not understood to be “the people” to whom the right of the people to keep and bear arms attaches. So, a law that precludes illegal aliens from possessing firearms is not really establishing a parameter around the Second Amendment anyway, as the right of the people to keep and bear arms, as codified in the Second Amendment by the framers of our Constitution, did not have illegal aliens in mind. As Congress, has authority, under Article I, Clause 4 of the U.S. Constitution to enact laws governing naturalization. An illegal alien–for which the term, ‘undocumented,' is nothing more than an euphemism and a poor and inexact term to be applied to such a person–is by definition an individual who is not of this Country as he or she is merely in this Country, and should not have been in this Country at all.
Parameters are set by legislators in statute or by Courts, when interpreting statute. But, as is clear from the language of the Amendments of the Bill of Rights, there are no true parameters. The rights expressed therein are absolute–as applied to citizens of the United States. It is a legal shibboleth, nothing more than a platitude, really, running as a constant thread through all State and federal legislation and through local rules, regulations, codes and ordinances. It is a platitude asserted by jurists and politicians alike—repeated with regularity, wearily and eerily, and as no more than an afterthought—as no more than cliché—a thing that has become a strange jurisprudential adage. It is that State and federal governmental regulations and local governmental rules and regulations, and codes and ordinances, that routinely and negatively impact basic rights might pass constitutional muster anyway since no right is absolute—including, and especially, those rights and liberties, clearly articulated and codified in the Bill of Rights of the U.S. Constitution, as handed down to us by the framers of our Constitution—the founders of our free Republic. Hence, the rationale, we see, is really nothing more than a paltry excuse, a mirage, a meager attempt to legitimize the undermining of fundamental rights of the People. This has led to a monstrous curtailing of the rights of the people of this Country. It has occurred incrementally, quietly, insidiously, seductively. And, many Americans have, unfortunately, grown accustomed to accepting out of whole cloth the illusion that they really don’t need to exercise the fundamental right to keep and bear arms, codified in the Second Amendment of the Bill of Rights of the U.S. Constitution, and that they don’t really need to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, as that right is codified in the Fourth Amendment of the Bill of Rights of the U.S. Constitution, notwithstanding that these two rights were deemed sufficiently important to the founders of our Nation that they set them down, expressly, in our Constitution. And now we are beginning to see that the freedom of speech and the right of the people peaceably to assemble, as guaranteed under the First Amendment of the Bill of Rights of the U.S. Constitution, too, are under assault. And we, Americans, are led to believe that this is, somehow, in some undefined way, in the natural order of things to see our fundamental rights and liberties curtailed and that we should no longer have any real expectation that we have any fundamental rights or liberties except to the extent that Government deigns to grant such rights and liberties to us, explaining, thereby, the extent to which such rights and liberties are granted, for a time, to this one or that one among us. This is to suggest that fundamental rights and liberties are to be perceived as fads, trivialities, things easily and infinitely malleable, to be kneaded like clay, or sloughed off like old clothes–things to be transformed or deleted, according to the norms of the time—as “new norms” are thrust on us by those who arrogantly, yet erroneously, claim the moral high ground and who claim a tacit right to decide what is best for the rest of us.
Another platitude we constantly hear is that we are a Nation that is ruled by laws and not by men. We live under the profound illusion that there exists a natural order existent in this platitude, forgetting or failing even to consider that it is men, after all, that make the laws that govern our actions and that govern our very lives, and that it is men that make the laws that denigrate our Constitutional rights and liberties, claiming, all the while, as they do so, as they forever inform us–artfully, deceitfully–that destruction of the right of the people to keep and bear arms, under the Second Amendment of the Bill of Rights of the U.S. Constitution, and that destruction of the freedom of speech and destruction of the right of the people peaceably to assemble under the First Amendment of the Bill of Rights of the U.S. Constitution, and that destruction of the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures under the Fourth Amendment of the Bill of Rights of the U.S. Constitution, are necessary–that destruction of these rights and liberties are, indeed, for the common good and that they are for the good of society, for the good of the collective, for the good of the hive. We are seduced into believing or otherwise cajoled into accepting that destructions of our fundamental rights and liberties, destructions set down in federal or State statute, and destructions set down in local rules, and codes, and regulations, and ordinances are yet, somehow, all created and implemented for our own good, for the good of the Nation or for the good of the community, or for the good of the people. We are told that these laws and codes and rules and regulations and ordinances that undercut our sacred rights and liberties are, nonetheless, to be taken as just and moral things. We are to accept these changes, and we are told that we should applaud these changes, as things consistent with the norms and standards of the time and of a “civilized society.” We are told to accept the notion that our Bill of Rights is, no more than any man-made law, something mutable, and like all things mutable, contingent, not meant to last. But, that is the myth thrust on us, to make us pliant little lambs.
Our Bill Of Rights Can Never Be Destroyed, Not Really, Not Ever–Try As Some May To Do So
What these scoundrels—these makers of “laws” that rule us, suffocate us—don’t tell us is that the laws they create are designed to supersede the Constitution, thereby denigrating the most important Truth of all—the singular, quintessential Truth which tells us that the U.S. Constitution is the Supreme Law of the Land. Yet, the fact of the matter is that no Statute, Rule, Regulation, Code, or Ordinance stands superior to the U.S. Constitution. No man-made law carries sway over our natural rights and liberties as set forth in the U.S. Constitution. To say that we are a Nation ruled by laws and not by men is, thus, a horrible lie—a monstrous lie because it carries–as many effective lies do–a kernel of truth—namely that we are ruled by laws, but they are all arbitrary laws–laws that come and go, like the light of a firefly at night. But it is the light of the Ten Amendments that comprise our sacred Bill of Rights that shines forever and can never be dimmed or snuffed out. Those Laws–the Ten Amendments that comprise our Bill of Rights–are Sacred Principles, Sacred , Sacrosanct, and Inviolate Truths. These Truths embodied in our Bill of Rights cannot be muted, or undercut, or diluted, or deleted, or destroyed. To attempt to destroy our sacred Ten Amendments is to destroy this Nation and, yet, these Ten Amendments cannot ever truly be destroyed. They can never be destroyed because they live in us. They are intrinsic to our very being as Americans.
We are a Nation that, ultimately, is ruled not by men, not by contingent, transient laws of men, and not by the edicts of men, but solely by the American People, as the Nation is in us as we are the embodiment of the Nation. The Nation is: We the People; and the sword and shield of the American People resides not in our laws–those contingent, transient things that come and go with the flow and ebb of time–but solely in the primordial, immutable, natural rights codified in the first Ten Amendments of the Nation’s Bill of Rights, a document seamlessly sewn into the fabric of the United States Constitution.
What, Then, Should We, Americans, Understand, From Pro-Second Amendment Bills, Such As Congressman Collins' Second Amendment Guarantee Act?
Congressman Chris Collins’ Second Amendment Guarantee Act must be viewed not as extending the right of the People to keep and bear arms—as those who oppose it would undoubtedly assert and thereupon argue that the bill should not be enacted into law–but should simply be understood as a reaffirmation of that fundamental, natural, primordial, preexistent, immutable Right as it exists, unconstrained: Pure, Infinite, all-Powerful, Supreme. As such, the Second Amendment remains, second to none, as the best guarantor of our freedom and our best hedge against tyranny.
As a reaffirmation of the import of our sacred Second Amendment, Chris Collins' Second Amendment Guarantee Act can be improved. We explain how to do so, commencing with our next post.
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