Time: Wed Aug 06 04:37:03 1997 by primenet.com (8.8.5/8.8.5) with ESMTP id EAA21278; Wed, 6 Aug 1997 04:30:43 -0700 (MST) by usr10.primenet.com (8.8.5/8.8.5) with SMTP id EAA13896; Wed, 6 Aug 1997 04:29:02 -0700 (MST) Date: Wed, 06 Aug 1997 04:28:06 -0700 To: (Recipient list suppressed) From: Paul Andrew Mitchell [address in tool bar] Subject: SLS: Unconstitutional Theories "Justifying" Federal Gun Control (fwd) <snip> > > 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 >commerce." > >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 >------- >To subscribe to c-news, send the message SUBSCRIBE C-NEWS, or the message >UNSUBSCRIBE C-NEWS to unsubscribe, to majordomo@world.std.com. Contact >owner-c-news@world.std.com if you have questions. > > > ======================================================================== Paul Andrew Mitchell : Counselor at Law, federal witness B.A., Political Science, UCLA; M.S., Public Administration, U.C. Irvine tel: (520) 320-1514: machine; fax: (520) 320-1256: 24-hour/day-night email: [address in tool bar] : using Eudora Pro 3.0.3 on 586 CPU website: http://www.supremelaw.com : visit the Supreme Law Library now ship to: c/o 2509 N. Campbell, #1776 : this is free speech, at its best Tucson, Arizona state : state zone, not the federal zone Postal Zone 85719/tdc : USPS delays first class w/o this As agents of the Most High, we came here to establish justice. We shall not leave, until our mission is accomplished and justice reigns eternal. ======================================================================== [This text formatted on-screen in Courier 11, non-proportional spacing.]
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