Thread: A little long, but bear with me
Hi everyone. Please bear with me on this, because I want to take time to explain my line of reasoning here.
A few days ago I decided to try to fit a couple of months of research together, and see if I had enough to draw conclusions. The subject is firearms, or arms in general. Now, I know this is an open carry site, but you own weapons. So here goes....
First, I looked at the Constitution and noticed two things.... First, it's a document of enumerated rights. Second, the founders did not write the second amendment (yes, they penned it, but the amendment was chosen by the People) and the preamble to the Bill of rights was startling because it focused on a misconception that I had always had about the right to bear arms.
The right to bear arms is not granted in the Constitution, nor is it an enumerated right.
First, I need to offer some definitions...
Right: A legal, equitable, or moral title or claim to the possession of property or authority, the enjoyment of privileges or immunities, etc.; (by extension) an entitlement considered to arise through natural justice (whether or not enshrined in legislation) and which is applicable to all members of a particular group. - Source Oxford Unabridged Dictionary *This was edited out of the abridged version.
Infringe: To break, shatter (rare in physical sense); to break down, crush, destroy; to foil, defeat, frustrate; to cancel, invalidate. To refute; to contradict, deny. To break the force or diminish the strength of; to weaken, enfeeble, impair; to mitigate. To break in or encroach on or upon. * If you reach a conclusion, based on facts, and then a new fact presents itself that changed the conclusion, then you infringe on that previous conclusion. If you ask someone for something that belongs to you, and they say, "Let's sit down and discuss it," then that delay infringes on your access to your property. If you own the right to your logo, and someone copies it closely enough to where it looks like yours, then they infringe on your logo. ** This definition has been edited out of modern dictionaries.
Privilege: A right, advantage, or immunity granted to or enjoyed by an individual, corporation of individuals, etc., beyond the usual rights or advantages of others; spec. (a) an exemption from a normal duty, liability, etc.; (b) enjoyment of some benefit (as wealth, education, standard of living, etc.) above the average or that deemed usual or necessary for a particular group (in pl. sometimes contrasted with rights). A document or deed attesting or conferring a right, advantage, or immunity.
Privilege: To give (a person) permission to (do something). To permit (a thing) to be done; sometimes with dat. of the person. To grant (a person) a license or authoritative permission to hold a certain status or to do certain things, e.g. to practice some trade or profession, to hold a curacy, to preach, to use armorial bearings, to keep a dog, to carry a gun, etc.
Title: An assertion of right; a claim. Legal right to the possession of property (esp. real property); the evidence of such right; title-deeds.
Constitution of enumerated rights: Rights are granted to the Constitution to allow it the strength to function. Imagine a right is a piece of paper that you own that grants you the right to do something. When you sign that paper over to someone else, you cease to have that right. The only way to get that right back is to ask the person you granted it to, to allow you to enjoy that right once again. If he gives your right back, then you own it again, but if he gives you a license to exercise the right, then you must do so at his discretion, because he owns title to the right.
Okay, moving on....
First, let's deal with the 2nd and get it out of the way, it's not important here. "THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution." This is the preferable and explaining authority to the Bill of Rights. Read it again, if you will, because you will notice that this passage does not grant anything, it forbids an action. One more time, it forbids an action, it grants nothing. If you make a rule for a child and the rule is, "You shall not go into the back yard, at all, period," and the kid says, "She didn't say I couldn't go into the back yard to get my baseball, she just said, "at all, period." So he goes anyway. He violates the limits placed on him.
The 2nd amendment, if placed in it's proper context should read: THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: ...the right of the people to keep and bear Arms, shall not be infringed. You'll notice I didn't include the militia part, it's not needed for this discussion.
First, look at who that passage is talking to. It is not the government talking to the people, but the people talking to the government. That's right. The second was written by the people to limit the government. It grants no rights, and because it grants no rights, it does not apply toward the right at all, ONLY toward the government. The second is a set of handcuffs placed on the government to prevent it from getting involved in the right to bear arms. It grants no rights, and therefor it does not affect the right that we own at all, period. So my point is that the second can never legally be used against anyone other than the government.
So if there is no authority for firearms regulation within the 2nd, then where does the authority come from? And, does the government need to seek permission to regulate firearms?
This falls under Enumerated Powers. You see a clue in the second, the phrase, "to prevent misconstruction or abuse of it's powers." Power or to empower means: To invest with legal or formal power or authority; to authorize or license to do something or for a purpose." This is accomplished through the Constitution of the United States through the process of ratification, or "to confirm or validate by giving formal consent, approval, or sanction. The rights that were granted were put into a document, then that document was sent back to the states to be approved and agreed to, and then the resulting "Treaty," (one who frames or is bound by an agreement) was considered the law of the land. The terms of the treaty were exceptionally clear... that all parties would be bound by allowing certain rights to be conferred from the hands of the people and enshrined into the document to give it power to bring a government into being.
Those rights that were granted were and are:
1: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
2: To borrow Money on the credit of the United States;
3: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
4: To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
5: To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
6: To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
7: To establish Post Offices and post Roads;
8: To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
9: To constitute Tribunals inferior to the supreme Court;
10: To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
11: To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
12: To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
13: To provide and maintain a Navy;
14: To make Rules for the Government and Regulation of the land and naval Forces;
15: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
16: To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
17: To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--And
18: To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
Now, what this means is that when you give up these rights, they no longer belong to you. Each right is clearly defined, clearly established, and number 18 gives the government the power to enforce and write laws to punish those who attempt to take those rights back. The united states Constitution is perfectly clear on one thing... those rights not granted to the government, or retained by the states (during ratification) belong to the people.
Now, let's get deeper.
Article 6 reads: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Article 3 Section 1 and 2 reads, in part: The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority...
Now, bear with me, I'm not going to make some silly strawman argument... just wait...
The Constitution is given power over certain subject. The courts are given power over those same subjects. They are only given power over federal laws authorized by the Constitution, and those laws needed to enforce provisions of the Constitution and provisions of state law.
This is where standing and subject matter jurisdiction comes into play.
Standing, or locus standi, is capacity of a party to bring suit in court. Federal courts only have constitutional authority to resolve actual disputes.
Subject Matter Jurisdiction: A court must have jurisdiction to enter a valid, enforceable judgment on a claim. Jurisdiction may be broken down into two categories: personal jurisdiction and subject matter jurisdiction. Personal jurisdiction is the constitutional requirement that a defendant have certain minimum contacts with the forum in which the court sits so that the court may exercise power over the defendant. Subject-matter jurisdiction is the requirement that the court have power to hear the specific kind of claim that is brought to that court.
Jurisdiction: exercise of judicial authority.
Authority: Derived or delegated power; conferred right or title; authorization.
So the Constitution gives power to the Government, and the Courts that the government have established have jurisdiction and authority over the matters put into it's subject matter jurisdiction.
Now, I'm going to shock you. Throw all of this away in your mind, and let's go back to February 4th, 1783, when England officially declared an end to hostilities with the new Nation, which, had not yet been named. Some were calling it America, others the United States, but the only government in the United States of the Continental Army and various state governments. The United States was also a series of territories, which had no affiliation as of yet. Each state had it's own set of laws, and some areas had no law at all, period. If you were not within the borders of a state, and you killed someone, then you could not be tried for murder except by the family of the person who was killed, or not at all. There were no laws. No rules.
In a way, there were no laws at all, anywhere. Oh, the states had a limited number of laws on the books, but they were the only ones able to enforce them, and those laws varied form area to area, dramatically. But step across a state border into unincorporated territory, and kill someone, he's just dead. You were free from laws. You were able to do totally as you please.
When the courts were established, this was an issue that had to be addressed. So a court system was established, but what would be illegal, and what would be legal? The answer is clear... only those rights granted to the Constitution could be used to make laws. Laws could only be authorized for that which was controlled by the Constitution. I am not referring to state law, and I'll get to that in a little while. This is why when the government wanted to ban alcohol, they couldn't just write a law, they had no standing, they had no subject matter jurisdiction. Any law that wrote would be extra-constitutional. Remember that, Extra-Constitutional. It means outside the limits of the Constitution, or, authority that it doesn't possess.
So when the Constitution was penned, the founders of our nation were not willing to put firearms or bearing arms into that document, because they did not trust it to not abuse that power. These people had just fought a war against their government, and the first battle of that war, the skirmish in Concord, was when solders, the police of that day, demanded that some people disarm and go home. Sound similar to recent events? Disarm and go home. Simple request. We hear it from our soldiers (don't insult me by calling them police, they may have been once, but today they are solders) today.
So the argument came up when the Constitution went to the states to be ratified, and the states said, "We do not have enough protections for certain freedoms. We will never be disarmed again! We will never let the government dictate the media again! We will never have solders squat in our houses, eat our food, and kill our animals again! So they said no. And the fledgling United States was on the verge of never coming into being.
The founders asked them what they would need to sign the treaty called the Constitution. And the demands were nearly unanimous. They did not trust the new government to not become as bad as the English were, and wanted additional levels of protection. The founders fought back against that. See, they felt that by not enumerating certain rights, those rights were retained by the people and the new government could never get involved with them. They were protected by not Enumerating them. But the states would not be mollified. They were like, "What if they use the Necessary and Proper Clause, or the Interstate Commerce Clause to TAKE those rights away by mis0construing established laws into something that they were never intended to be? No! We need to have those protections.
The founders objected again. They said that there was no way to word a limit on the government that would not eventually be used to limit the right of the people. But the states were still refusing to sign the Constitution, saying that there was no way a limit on the federal government could be used to limit the people who wrote it! Finally the founders agreed to add the limits, over their objections. The states ratified them, and our Bill of Rights was born.
The states were binding themselves to the Constitution, but certain areas were left in the hands of the state courts. They were not giving up their sovereignty, but were uniting on a higher level. Sadly, within a few years, those state rights were trampled by the new government, and eventually a war was fought, with the government taking the side that states have no rights. This is most assuredly not true. The governors of the several states can hold a Constitutional Convention, and if they so choose, disband the federal government. This is fact. But the states were adamant about the Bill of rights, and knew that by including them in the Constitution, they would bind themselves as well to the limits imposed by the second, but it really didn't matter. Since the 2nd grants no rights, and only applies to the federal government, then it can never be used to limit the right to bear arms.
The states came into it with the Heller, and McDonald Decision, a decision that should have never been made. A ruling that has done more damage to the right to bear arms than anything that any other court in the history of the United States has done.
Heller applied the limits that had previously only been ruled to be applicable to the federal government, to the states. In doing so, he also gave the courts jurisdiction over the right. This court converted the right, to a privilege.
Before this ruling, the courts in the United States had no standing. Because the right was never enumerated, and was never granted to the federal government to regulate, the federal government never had subject matter jurisdiction over the right. This is why the recent cases have been rejected by SCOTUS, it's a standing issue. Even in previous cases, the court ruled that the right belonged to the people and not the government, and was theirs to protect or lose. They only took action after they saw the number of people killed, and saw the literally pathetic understanding that people had of the right. The case that incorporated it was the solution to give them power to regulate the state conduct toward the right, because we were doing such a piss-poor job of it ourselves. The ruling has opened the door to litigation that was impossible before, but the court knows that it still doesn't matter... the states do not have subject matter jurisdiction, either. Have you seen this case, where the plaintiff argued standing and subject matter jurisdiction? No?
The right is an individual right. Every federal law that regulates that right is extra-constitutional, and illegal. But while we, as gun owners, honor those illegal laws, we give them power.
This is the problem with that.
See, they disarm us.
We let them.
Then, when some crazy decides to go on a shooting spree, and there are no gun owners there to stop him, the mice that disarmed us are celebrating, because they created a killing that will make us look bad.
We are the strongest people in our society. One gun owners with a good weapon can hold a hundred non-gun owners at bay. One gun owner can stop traffic, shut down a business, or wage a war all by himself. One gun owner is as strong as a hundred non-gun owners. Yet, we are letting the illegal laws disarm us, and the mice dictate the terms of our surrender.
Then a shooting happens because we allowed ourselves to be disarmed, and who do they blame? US!
In a way they are right. The laws are illegal. The rules are illegal. The foundation of the laws is whacked and untenable. The stupid laws are built on the Interstate Commerce Clause for goodness sakes! The INTERSTATE COMMERCE CLAUSE! It's exactly what the states wrote about when they wrote, ""THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added:" Misconstruction? The action or an act of misconstruing words or actions; misinterpretation. What they have done is take the limits we placed on them, and are using those words to manufacture limits to impose on us. "Well, you didn't way I couldn't use a marker, so I used it instead of a pencil!" That is why they love the Militia part and ignore the infringe part. They are trying to turn our words against us.
So we let the mice dictate the terms of our surrender. Then, we cry when they blame us for the next or last shooting. Then we capitulate and say, "hey, perhaps we DO need more laws!" And they celebrate, because they just pulled one more of the cats claws.
And we die.