Time: Wed Aug 06 04:37:03 1997
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Date: Wed, 06 Aug 1997 04:28:06 -0700
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From: Paul Andrew Mitchell [address in tool bar]
Subject: SLS: Unconstitutional Theories "Justifying" Federal Gun
  Control (fwd)

>   Unconstitutional Theories "Justifying" Federal Gun Control
>                              by
>                          Larry Pratt
>                       Executive Director
>                      Gun Owners of America
>Much of this century has been a time when the federal government
>has ignored the limitations imposed on it by the Constitution.
>Recent cases decided by the by the Supreme Court indicate that
>the Justices are beginning to once again take the Constitution
>and their oath of office seriously. As Justice Clarence Thomas 
>put it in the recent Lopez case, "our case law has drifted far 
>from the original understanding ..." of the Constitution. 
>While there were wrong turns before this century, much of the 
>unconstitutional rule from Washington dates back to the
>Great Depression and its war on crime and war on the bank
>crisis. There were many unconstitutional theories of
>government pursued to justify the power grab by Washington.
>One of the theories was to run an end run around constitutional 
>limitations by entering into a treaty that would require
>passage of legislation accomplishing what, without the treaty,
>would have been unconstitutional. 
>President Franklin Delano Roosevelt's administration was an
>active participant in the Disarmament Conference of 1934.
>Roosevelt sought Senate ratification of an Arms Traffic
>Convention but was unsuccessful. Had the treaty been
>ratified, Roosevelt would have obtained the alleged authority
>to have Congress infringe on the right to keep and bear
>arms pursuant to the treaty powers of Article VI, paragraph 2. 
>Roosevelt then shifted to the unconstitutional, non-existent
>doctrine of emergency powers to justify enactment of gun
>control at the federal level. Calling for a War on Crime and
>Gangsters, Roosevelt persuaded Congress to pass a series of
>bills federalizing various crimes and compelling the registration 
>of machine guns and sawed-off shotguns and rifles. The formula 
>"War on Whatever" became a decades long federal government weapon 
>for usurping powers not delegated to it. 
>Nowhere does the Constitution give the President or the Congress
>the power to federalize state crimes or enact gun control
>legislation -- not even in a national emergency. One reads
>the Constitution in vain for such a delegation of authority by
>"We, the People" through the several states. Very instructive 
>on this point are the Kentucky Resolutions of 1798 which were
>written by Thomas Jefferson. 
>The federal government in 1798 enacted a law making it illegal
>to criticize a federal official (the Sedition Act). Kentucky
>and Virginia passed resolutions declaring that the national
>law was unenforceable in their states. 
>These are among the arguments that Jefferson made in the
>Kentucky resolutions: 
>    ...whensoever the general government assumes
>    undelegated powers, its acts are unauthoritative,
>    void, and of no force: ...that the government
>    created by this compact was not made the exclusive
>    or final judge of the extent of the powers delegated
>    to itself;...each party has an equal right to judge
>    for itself, as well of infractions as of the mode
>    and measure of redress.
>Jefferson went on to spell out that the only powers to punish
>crime delegated to the federal government were 1) treason,
>2) counterfeiting the securities and current coin of the
>United States, 3) piracies and 4) offenses against the law of
>nations. In this context, Jefferson cited the Tenth Amendment
>as providing a limit to any expansion of authority for punishing
>crime by the federal government. He quoted it verbatim in the
>Kentucky resolutions: "the powers not delegated to the United
>States by the Constitution, nor prohibited by it to the States,
>are reserved to the States respectively, or to the people." 
>Jefferson addressed an argument in the Kentucky Resolutions that
>we still hear to this day. Namely, that Congress has the 
>authority to pass all laws which shall be necessary and proper 
>for doing whatever it does. Jefferson described this abuse of 
>the "necessary and proper" clause as going, 
>    to the destruction of all limits prescribed to
>    their power by the Constitution: that words meant
>    by the instrument to be subsidiary only to the
>    execution of limited powers, ought not to be so
>    construed as themselves to give unlimited powers,
>    nor a part to be so taken as to destroy the whole
>    residue of that instrument...
>A parallel argument is derived from the "supremacy" clause
>of Article VI. This clause makes treaties and laws passed by
>Congress the supreme law of the land. Jefferson is pointing
>out that the federal government is not empowered to take the
>limited powers it has been granted and convert them to
>unlimited powers that would destroy the nature of the
>Constitution. Similarly, the "general welfare" clause in
>Article I, Section 8 can hardly be a grant of unlimited power
>of action for the Congress since the section is one limiting
>the powers of Congress. Jefferson made this particular argument
>in his opinion against the national bank in 1791. 
>It is the Commerce Clause that has become the most popular
>pillar of unconstitutional authority for federal gun control.
>It is interesting to note that in the early part of the
>twentieth century it was considered necessary to amend
>the Constitution to ban alcoholic beverages. After the
>bloating of the Commerce Clause to justify federal involvement
>in anything and everything following the key 1946 Supreme Court 
>decision Wickard v Filburn, it was not felt to be necessary to
>amend the constitution to infringe something specifically named
>and protected -- like arms -- in the Constitution. 
>It is important to understand that the word regulate was
>applied to commerce in the sense of making regular rather
>than controlling. In an early case where the Commerce Clause
>was at issue, Justice Marshall in the Gibbons steamboat case,
>noted that had the Clause been intended to affect all economic 
>activity, it would not have been included in the enumerated,
>or limited, powers section of Article One Section 8. Thus,
>the Commerce Clause affects interstate trade which involves
>more than one state. The idea was that Virginia could not tax
>Maryland tobacco to the point that it was kept out of its
>Commonwealth, and similarly, so that Maryland could not do
>the same. 
>Justice Thomas put it this way in his Lopez opinion: "...the
>power to regulate `commerce' can by no means encompass authority
>over mere gun possession, any more than it empowers the
>Federal Government to regulate marriage, littering, or cruelty
>to animals, throughout the 50 States. Our Constitution quite
>properly leaves such matters to the individual States,
>notwithstanding these activities' effects on interstate
>Thomas went on to explain that, as an enumerated power, the
>Commerce Clause of Article I Section 8 cannot be used to
>justify a universal police power of the federal government: 
>    After all, if Congress may regulate all matters
>    that substantially affect commerce, there is no
>    need for the Constitution to specify that Congress
>    may enact bankruptcy laws, cl. 4, or coin money and
>    fix the standard of weights and measures, cl. 5,
>    or punish counterfeiters of United States coin and
>    securities....
>Put simply, much if not all of Art. I, Sec. 8 (including
>portions of the Commerce Clause itself) would be surplusage
>if Congress had been given authority over matters that
>substantially affect interstate commerce. An interpretation
>of cl. 3 that makes the rest of Sect. 8 superfluous simply
>cannot be correct.
>To put it another way, the Court is now saying that they
>believe that the Tenth Amendment has to be observed. As Joe
>Sobran put it in a column in The Washington Times (May 30,
>1995): "From now on, the court will be debating basic
>principles. The federal government will have to walk through
>the metal detector of the 10th Amendment." 
>In the Wickard case, the Supreme Court agreed with the argument
>that even though farmer Filburn's wheat was not purchased nor
>sold in interstate commerce, the very fact that he did not
>enter interstate commerce negatively affected interstate
>commerce. With this totalitarian view of the reach of
>government, there was no limit to what the federal government
>could do. In many areas of social life, using this distorted 
>interpretation of the Commerce Clause, Congress stepped up its 
>suffocation of many kinds of private activity. Firearms were
>no exception.
>Finally, in the 1995 Lopez decision, the Court has begun to
>return to constitutional government. Lopez was arrested at a
>Texas school for having a gun and thus violating the federal 
>prohibition on having a firearm within 1000 feet of a school.
>The Court held that whatever the policy merits of the measure,
>the Congress had no authority to enact such a law. 
>(Regarding the policy issue, the most constitutionally
>consistent approach would be to make it illegal to have a
>gun at a school for the purpose of committing a violent crime.
>This would put the burden on the criminal by, in effect, adding
>an additional penalty to whatever other violent crime was
>committed. The burden would not go on the decent people, such
>as students who target practice with teams, parents who are
>going to or from hunting, and teachers and other adults who
>have a concealed carry permit for self-defense. Such a policy
>also assumes that criminals will violate any law that we pass,
>so the law should target only criminal behavior, and not
>criminalize good behavior.) 
>A proper understanding of the Commerce Clause indicates that
>the most the federal government can do in the firearms area is
>to keep one state from using taxation to adversely treat
>firearms which are made in another state and are for sale in
>the first state. As Justice Thomas put it in his opinion
>concurring with the majority in the Lopez case, the central
>issue of the wrong turn by the Court over the last 50 years
>was not being addressed head-on in Lopez, but it needs to
>be soon. 
>If the Court were to be consistently constitutional, all federal
>gun control legislation, starting with Roosevelt's 1934
>National Firearms Act, would be thrown out. This could actually
>happen in view of the five federal courts which have now held
>another federal gun control law to be unconstitutional on
>similar grounds to that of Lopez. Five sheriffs have sued
>successfully under the Tenth Amendment holding that Washington
>had no authority to force them to carry out a background
>check under the Brady Law. This argument points right back to
>Article I Section 8 where we have already found that there
>is no authority given to the federal government for gun
>control legislation. 
>If the United States is to return to a lawful, constitutional
>national government, one of the sure signs of that return will
>be the removal of the decades-long imposition of federal
>gun laws. 
>Chris W. Stark
>Gun Owners of America - Texas Representative
>e-mail: gunowner@onramp.net
>Visit our Web Page at: http://rampages.onramp.net/~gunowner
>  "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, and to provide new Guards for
>their future security."
>John Hancock, Author - The Declaration of Independence,
>                               January 18, 1777
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Paul Andrew Mitchell                 : Counselor at Law, federal witness
B.A., Political Science, UCLA;  M.S., Public Administration, U.C. Irvine

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