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Wednesday, February 6, 2013

ALL Gun Laws are Unconstitutional; Roll Them ALL Back

I respect 'Ol Remus down yonder at the Woodpile Report.  He is somethin' of an inspiration to me and mine here in the Backwoods.  And this week, he has given us a lot to think about.

His basic premises are: 1) We don't have to show "need" to exercise a protected right, and 2) every infringement of the 2nd Amendment is already un-Constitutional, and should be rolled back.

I agree.  Let's take a look at his arguments.
A right requires no justification, no demonstration of need, it merely is. The people do and should have the right to keep and bear arms of their own choosing, the same small arms police officers or light infantry have, if they wish, including fully automatic weapons. There's no such thing as common sense infringement, or reasonable infringement. Infringement is infringement. It's specifically forbidden.
This seems so simple, so plain-spoken, so black-and-white, it's bound to drive the Progressives nuts.  That may be, but "the right of the people to keep and bear arms shall not be infringed" means what it says.

What is being protected here? "The right of the people.".   What is being restricted?  Actions of the government (federal, state, and local) are, as in the remainder of the Bill of Rights.  The government is specifically prohibited from infringing this right.  Any law must meet this very strict test.

Okay, so let's take the popular "common sense" gun laws and proposals one by one, and check if they meet this test.  I ain't no lawyer, but let's think about this, with backwoods common sense.

  1. Banning specific types of arms? Banning fully automatic weapons?    "Assault weapons"?

    Government infringement, because we know those laws set up a distorted black market for certain disfavored arms, but not the favored.  Anyone who owns only a banned weapon and hasn't the means to buy another to comply with the law has their right infringed.
  2. Banning specific types of magazines, or number of rounds carried?

    Government infringement.  Easy example: an attack by a large criminal band quickly disarms the peaceable citizen.   Right infringed.
  3. Gun-Free school zones?

    Government infringement.  Carrying a weapon is a protected right, with no infringement permitted because of location.
  4. Ammo taxes?  Special insurance? Taxes on specific weapons or accessories (suppressors)?

    All government infringement.   There is no clause in the 2nd that allows the government to assess 'need'.  And any burden laid on the citizen regarding this right is an infringement.
  5. Concealed vs. open carry?   Requiring concealed carry permits?  FOID cards?

    Sorry, government infringement.  The manner of carrying is not exempted from infringement.
Ol' Remus makes the point that the right to keep and bear arms is separate from crime and punishment:  
Defending gun rights with arguments about self-defense and sporting use are not so much wrong as irrelevant, as are notions about wider gun ownership suppressing crime. The Second Amendment isn't conditional on the crime rate. As a practical matter, murder will continue to be illegal whether the victim is shot with a gun or beaten to death with a can of tomato juice. Defenders of gun rights are unwise to use these arguments, the fundamental issue was settled definitively in 1789. 
I may want to kill government tyrants, or defend myself from criminals, or shoot little pink balloons, or deer, or prairie dogs, or skeet. The use case is irrelevant to the proscription on the government to infringe.  The reasons I want to keep and carry arms are irrelevant to the no-infringment stance of the 2nd.  Whether arms are used in crime is a separate issue; infringing a protected right is still disallowed.

Ol' Remus also cautions against appealing to the Supreme Court:
Appeals to the Supreme Court are also wrong, the court awarded itself the authority to rule on the Constitutionality of laws, it's a power it does not have other than by acquiescence. The Bill of Rights was written by the people, in plain language. The Supreme Court can't legitimately presume to speak in its place, rights which predate the republic don't exist now only as they define them, they were recognized as-is by the same document that brought the court into existence, and of the two, the court is the lesser. Rights are the purpose of governance, the court is only part of the plumbing.
Yep.  Marbury v. Madison established judicial review, but did not give the Court the power to dilute the Bill of Rights, or any other part of the Constitution.  Ol' Backwoods has been told by a county attorney that it did.  Well, Thomas Jefferson disagrees:
You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps.... Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots.
The Progressives want to empower the government to infringe rights, but stare decisis (settled court cases) cannot carry the weight that the Constitution itself does.

Ol' Remus continues, referring to the pile of horse hockey that is US v. Miller, and secondarily, Wickard v. Filburn:
Nor is trust in the good faith of the Supreme Court warranted. For one egregious example of their malfeasance, outright betrayal to be plain, it is they who elevated the Commerce Clause above our civil liberties. It's a clause intended to make commerce regular from one state to any other state, to keep Connecticut from imposing a surcharge on peanuts from Virginia for instance. By knowingly expanding this into an enabling act to disarm the people, the court placed itself above the law and, therefore, outside the law.
If the Supreme Court strikes down 2nd Amendment infringement (as in Prinz v. USUS v. Lopez, DC v. Heller and others), great, it's performing its Constitutional function.  But if the Court codifies infringement (as in US v. Miller), it is in conflict with the Constitution, and it is up to the states or the people to stop it.

Ol' Remus continues by arguing that any infringement in law, past present or future, of our right to keep and bear arms is unConstitutional, lock stock and "shoulder thing that goes up". Ol' Remus says it better'n I can:
The "not one more inch" position is necessary but insufficient. It assumes and accepts infringement already in place. Nor can we vote for or against a right and continue to call it a right, as when we vote for candidates who conditionally support the Second Amendment. Doing so implies we've obliged ourselves to additional infringement when they compromise, which they will.
"Compromise" in Congress, as Alan Gottlieb puts it, means they take some of our rights today, and come back for the rest tomorrow.  This has been borne out time and again in the history of US, state and local laws infringing the right to keep and bear arms.  Ol' Remus lists past infringements at the federal level:
  • The National Firearms Act of 1934 specifies minimum barrel lengths and other mandatory features, criminalizes the possession of silencers and fully automatic firearms.
  • The Federal Firearms Act of 1938 regulates sales of guns and ammunition.
  • The Gun Control Act of 1968 introduces the FFL system, ends buying guns by mail order, limits importing military arms, and creates a 'sporting use' requirement for civilian firearms. It has since been disclosed the Nazi Weapons Law of 1938 was used as a template.
  • Firearm Owners Protection Act of 1986, modifies some abuses of the 1968 Act, adds the Domestic Violence Offender Gun Ban and a total ban of fully auto weapons not registered as of 1986.
  • The Gun-Free School Zones Act of 1990.  [Which was struck down by US v. Lopez and others]
  • The Brady Handgun Violence Prevention Act of 1993, creates the federal background check system.
  • The 1994 Violent Crime Control and Law Enforcement Act, known as the "assault weapons ban". It [sunset] in 2004.
  • The HUD/Smith and Wesson agreement of 2000, in which Smith & Wesson "voluntarily" changed the design, distribution and marketing of their guns.
Indeed, almost every time Congress takes up legislation on the right to keep and bear arms, our rights are infringed.

This must end.

UPDATE: Re-posted at The Dirty Dozen's Bunker, and discussed there.  Thanks, guys!


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