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The Federal Government is Constitutionally Barred from Gun Control

THE VIEW FROM HERE - The US Supreme Court decision in District of Columbia v. Heller, 554 U.S. 570 (2008) presents the nation with a constitutional nightmare.

It is a constitutional case which the US Supreme Court had no jurisdiction to hear, except to dismiss the petition for lack of jurisdiction. Thus, Heller is void. The fact that the case arose from the District of Columbia created a minuscule issue since D.C. is not a state.  Thus, the facts could not involve the Second Amendment which should have been clarified in its first sentence, e.g., “As this case involves the District of Columbia which is not a state, this case does not involve the Second Amendment.” 

Scalia’s Type Originalism is Bunk 

While Justice Antonin Scalia was the major proponent of the totally false claim that the Second Amendment created an individual right to own a gun, we can no longer overlook the reprehensible role which the so-called liberal wing of the court played in plunging us into this violent nightmare of endless mass slaughter of innocent people. The liberals had a moral duty to stand their ground against Scalia’s bullying. They failed miserably. 

The Great Constitutional Betrayal 

The opening sentence of the dissent opinion reads: 

“The question presented by this case is not whether the Second Amendment protects a “collective right” or an “individual right.” Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.”  (Bold added) 

This paragraph is tantamount to a soldier’s throwing down his rifle and running away from the enemy.  Such cowardice has serious penalties for a lowly private who may have been drafted and is ill prepared to give his life to defend an oil field.  When a general deserts his troops and the civilians are left to fend for themselves, what then should the penalty be?  Certainly not praise. 

Uniform Code of Military Justice (UCMJ) Article 85 covers desertion.  

“Desertion to avoid hazardous duty or to shirk important service: dishonorable discharge, forfeiture of all pay and allowances, reduction to the lowest enlisted grade, and confinement for five years.” 

If the least of us faces such consequences, why shouldn’t the most exulted of us bear accountability? 

What Does the Second Amendment Actually Say? 

“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.” (bold added) December 17, 1791 (As used in the Constitution, “State” does not include the central government.) 

The US Constitution without the Bill of Rights was ratified in 1787. The first ten amendments were collectively added four years later and designated “The Bill of Rights.”  There was considerable discussion and disagreement leading up to the ratification of the Bill of Rights.  The anti-Federalists were particularly worried about the power of the central government to trample on the rights of the states.  Others believed that the Constitution itself along with the nature of the state governments was adequate to protect states. Those who advocated for the Bill of Rights prevailed, and in 1791 the Second Amendment was added to constrain the power of the central government. 

In 1791, people knew what the Second Amendment meant.  All adults lived through the revolution against the central government of King George.  They fretted over the danger which a strong central government posed to the states. 

Where guns were common, gun control was also common.   Firearms Licensing and Consulting Group, American Gun Laws – Colonial Arms Regulation  If Founding Fathers thought gun control was a problem, they would taken action against the hundreds of gun control regulations in all of the states, which basically kept the gun control laws which they had as colonies.  There was no public pressure to end any state from having gun control laws.  Gun control was especially strong in Southern states.  Gun Control Is as Old as the Old West | History| Smithsonian Magazine 

The US Constitution Increased the Fear of the Central Government 

Virtually everyone, however, feared that the new central government could treat the states the same way King George had behaved with the colonies. The new Constitution gave the central government the right to have a standing army. 

“To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;” US Const. Art1, Sec 8 

One should note the limitation that money for the standing federal army could not be for more than two years.  This provision shows the fear that Americans had of the central government at the same time as the Founding Fathers agreed on its necessity. 

Many realized that an overbearing federal government would vote more funds every two years for the standing army, making the revenue restriction an illusory protection.  The national debate ensued. 

Federalist Paper 46, written in 1788, by James Madison discussed the danger  that strong central government with a standing army held for the individual states. In 1788 Madison thought that circumstances were adequate to guard against this admitted threat. The national government could not maintain an army which was large enough to overwhelm the much larger forces of the collective states who would surely band together to oppose the feds. 

Shortly thereafter, Madison changed his mind about the Constitution’s not needing a Bill of Rights.  While the amendments’ mere words would not suffice to restrain power, the enumeration of rights would inhibit others from violating them in the future.  Thus, Madison became an advocate for the first ten amendments. That is why his Federalist Paper 46 is vital; it describes the entire context of the Second Amendment as protecting the states from the military power of the central government. 

If Scalia or the liberals had had integrity, they would have admitted that at the time the Second Amendment was written, no one was thinking about conferring individual’s constitutional right to own guns.  Their singular goal was protecting the states from a central government which might destroy the militias by passing laws depriving state militia members of having guns.  

No Individual Rights Were Granted by the Second Amendment 

The entire liberal argument in Heller about what rights the Second Amendment granted is specious. It granted no individual rights. It merely prohibited the federal government from any role in gun control.  By its text, it did not stop the states from passing gun control laws.  One has to recognize that Madison was a strong supporter of States’ Rights.  Since state militias often had to rely militiamen owning their own guns, he would never have infringed on the states’ right to defend themselves.  At this time, states were also vulnerable to armed factions with loyalties to foreign nations, to the central government or to powerful financial interests.  Controlling these factions’ access to guns could be almost as important as arming the militia.  

What More Could They Have Done? 

No one who has an iota of intellectual integrity can ignore that the Second Amendment’s stated purpose was “the security of a free State.”  Creating a individual constitutional right to bear arms would endanger the states which had strict gun control from the time that they were colonies.  Where did a single colony abolish its gun control laws? 

Integrity Requires Honesty

Both political parties lack integrity when it comes to gun control.  While the nation may have slowly slipped into an absurd upside down interpretation of the Second Amendment, continuing this nonsense is not the path forward.  When one has been wrong, an honest person admits the error.  If a store clerk shortchanges the customer, the clerk does not get to keep the extra cash and use it as pretext to shortchange others ad infinitum. 

United States v. Miller, 307 U.S. 174 (1939) started us down this unconstitutional juggernaut by declaring National Firearms Act of 1934 (NFA) was constitutional, but by 2008 its unforgivable error was clear.

The NFA should have been declared unconstitutional.  If the public thought the Feds should make gun control rules in the 1930's, they could have passed a constitutional amendment like that they had to start Prohibition (1919 ) and then to end Prohibition (1933).  Ignoring the Constitution has proven disastrous. 

Heller Is Dead 

Heller is dead law because the Second Amendment deprived the US Supreme Court of jurisdiction.  Decisions with lack of jurisdiction are void no matter how much time has passed. The federal courts have no jurisdiction over state gun control laws.  There is no restriction on any state’s right to control guns unless it is in that state’s constitution.

(Richard Lee Abrams has been an attorney, a Realtor and community relations consultant as well as a CityWatch contributor.  You may email him at [email protected])