It has been said that eternal vigilance is the price of liberty. This is especially true when it comes to gun liberty, since there are many organizations and government officials in “the land of the free” that would like nothing better than to disarm or severely limit the gun rights of law-abiding American citizens. The recent pro-gun decision in the Supreme Court case of McDonald v. City of Chicago doesn’t change our need for due diligence when it comes to gun liberty.

The McDonald Case

In a 5-4 decision written by Justice Alito, the Supreme Court reversed and remanded a ruling by the Court of Appeals for the Seventh Circuit that upheld a District Court ruling against a challenge to the city of Chicago’s draconian gun laws that have effectively banned handgun possession by almost all residents of the city since 1982. Naturally, Chicago’s murder rate has increased since the gun ban was enacted, and the city now has one of the highest murder rates in the country. Yet, Chicago mayor Richard Daley, a strong gun-control proponent, said the city “will publicly propose a new ordinance very soon” that will attempt to restrict gun ownership in a manner that doesn’t violate the Supreme Court decision. The District Court is expected to take up the case again later this summer.

Alito was joined in full by Justices Roberts, Scalia, Kennedy, and for the most part by Justice Thomas. At fifty-six pages, Thomas’s concurring opinion is longer than the majority opinion. Scalia also had a concurring opinion, but mainly to respond to the dissent of Justice Stevens. Another dissenting opinion was written by Justice Breyer, joined by Justices Ginsburg and Sotomayor.

The plaintiffs in the case argued that the Chicago gun laws violated the “privileges or immunities” clause of the Fourteenth Amendment and that the Amendment’s “due process” clause incorporates the Second Amendment’s “right of the people to keep and bear arms.” In reversing the decision of the Court of Appeals, the Supreme Court rejected the former argument and accepted the latter one, thus ruling that the Second Amendment, which protects an individual right to keep and bear arms, as the Court ruled in Heller (2008), applies to the states.

The Incorporation Doctrine

The issue of incorporation is a complicated and sometimes controversial one. I have written at length on this subject in “The Kelo Decision and the Fourteenth Amendment.”

The Second Amendment was adopted because, as Justice Alito quoted from the Heller decision: “During the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric.” Before 1820, thirteen states had also adopted state constitutional provisions that protected an individual right to keep and bear arms. Several States did have laws that restricted firearm ownership to those who were free men and did not pose a “danger of public injury”

The Bill of Rights was originally designed to apply only to the federal government. Writing in Barron v. City of Baltimore(1833), Chief Justice Marshall pointed out that the first eight amendments were added to the Constitution because of concerns about the extent of federal power. Marshall held that if “the framers of these amendments intended them to be limitations on the powers of the state governments, they would have imitated the framers of the original constitution, and have expressed that intention.” Often forgotten is that the Bill of Rights had a preface:

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 insure the beneficent ends of its institution.

In three nineteenth-century cases before the Court—U.S. v. Cruikshank (1876), Presser v. Illinois (1886), and Miller v. Texas(1894)—it was affirmed that the Second Amendment only applied to the federal government. And it should be pointed out that the right to keep and bear arms was widely protected by state constitutions at the time of the ratification of the Fourteenth Amendment.

Beginning with the case of Gitlow v. New York (1925), where the Supreme Court ruled that a New York law violated the free speech clause of the First Amendment because that part of the First Amendment was incorporated into the Fourteenth, the Supreme Court began to selectively incorporate certain elements of the Bill of Rights into the Fourteenth Amendment via the “due process” clause. With the incorporation of the Second Amendment in the McDonald case, this only leaves four things that have not been incorporated: the Third Amendment’s protection against quartering of soldiers, the Fifth Amendment’s grand jury requirement, the Seventh Amendment’s right to a jury trial in civil cases, and the Eighth Amendment’s prohibition of excessive fines.

The inclusion above of the Fifth and Eighth Amendments, which each contain more than one subject, shows that the Supreme Court’s incorporation doctrine can encompass just part of an Amendment. And not only that, the Court applies two things from the Sixth Amendment differently against the states than against the federal government. First, the appointment of counsel is required in all federal criminal cases in which the defendant is unable to afford an attorney, but is only required in state criminal cases where lack of counsel results in a conviction lacking in “fundamental fairness.” And second, a unanimous jury verdict is required in federal criminal trials, but not in state criminal trials. Although the whimsical nature in which selective incorporation of amendments and parts of amendments was carried out during the twentieth century has led some—including this writer—to question the whole concept of incorporation, it is a firmly established doctrine that, like judicial review, has become a permanent fixture of the Supreme Court.

That the respondents in the McDonald case, as well as the four dissenting justices, oppose the incorporation of the Second Amendment shows, as Jacob Hornberger recently pointed out, the hypocrisy of liberals. No liberal—on or off the Supreme Court—ever had a problem with the incorporation doctrine when it came to First Amendment rights or the rights of the accused. Liberals are all of a sudden arguing against incorporation because they are anti-gun.

Although agreeing with the Court that the Second Amendment applies to the states, Justice Thomas makes a good argument that the right to “keep and bear arms” applies to the states through the “privileges or immunities” clause.

The Second Amendment

The Second Amendment to the Constitution has engendered more controversy than any other Amendment except perhaps the Fourteenth. It’s twenty-seven words read: “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.”

The dissenting opinion by Justice Breyer in McDonald seeks to revisit the Supreme Court’s ruling in Heller that the Second Amendment protects an individual right to keep and bear arms. Breyer has evidently never gotten over it. He still tries to maintain that the Second Amendment relates primarily to the states’ ability to maintain a militia. First of all, he is just plain wrong. Among other things, “the people” are also mentioned in the First, Fourth, Ninth, and Tenth Amendments. Are we to believe that “the people” means something different in the Second Amendment? The militia referred to citizens who owned guns. There were no police forces, National Guards, or standing armies. Secondly, the Second Amendment is about a right that is already assumed to exist. The amendment recognizes a right; it does not grant a right. The Bill of Rights was never intended to give Americans rights; it was designed to protect their rights from infringement by the new and powerful central government under the Constitution. And third, even if the Second Amendment was not in the Constitution or did refer only to the states’ ability to maintain a militia, it would not affect Americans’ right to keep and bear arms one iota. All men have a natural and moral right to arm themselves for hunting, sport, or self-defense against aggression by other men or governments.

Justice Breyer even has the audacity to invoke the principal of federalism as a reason why the Fourteenth Amendment shouldn’t incorporate the Second. Incorporation would “amount to a significant incursion on a traditional and important area of state concern,” says Breyer. The federal relationship that exists between the states and the central government is an important one. Federalism and decentralization are bulwarks of liberty against the tyranny of the central government. But since when was Justice Breyer, or the other justices who joined him in dissent, or the respondents in McDonald, or Mayor Daley, or any liberal in favor of gun control concerned about limiting the power of the federal government? These people are just flat out against gun liberty.

The libertarian and decentralist perspective on the Second Amendment is a simple one: The Federal government may not infringe upon anyone’s right to keep and bear arms, period. There should be no federal restrictions, federal registration, federal background checks, federal banning of certain weapons, or other federal infringements of the right of the people to keep and bear arms. This means that it is on the state level—per the Tenth Amendment—that we should be arguing the pros and cons of restricting the gun ownership of certain convicted felons, non-citizens, the mentally ill, etc., lawful gun types, usage, ammunition, etc., and any other type of regulations. To what extent the federal government should intervene in state gun laws is entirely another matter.

McDonald and the Prospects for Gun Liberty

Because the Tenth Amendment is a dead letter—and the Constitution too it seems most of the time—the McDonald decision, at least in the short run, is good for gun liberty. However, like the Heller case, I have mixed feelings about the Supreme Court’s decision in McDonald.

Writing for the majority, Justice Alito makes it perfectly clear that although Chicago’s gun ban may not be constitutional, most of the existing gun regulations that do infringe upon the right of the people to keep and bear arms will continue:

It is important to keep in mind that Heller, while striking down a law that prohibits the possession of handguns in the home, recognized that the right to keep and bear arms is not a “right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as “prohibitions on the possession of firearms by felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” We repeat those assurances here. Despite municipal respondents’ doomsday proclamations, incorporation does not imperial every law regulating firearms.

Noted in the decision was a brief (Amici Curiae 23) filed by thirty-eight states on behalf of the petitioners that “state and local experimentation with reasonable firearms regulations will continue under the Second Amendment.”

It is because of the Supreme Court permitting infringements on the right to keep and bear arms that some gun-control advocates reacted favorably to the McDonald decision. Mayor Bloomberg of New York City optimistically remarked that the Court’s decision shows “we can work to keep guns out of the hands of criminals and terrorists while at the same time respecting the constitutional rights of law-abiding citizens.” Jackie Hilly, the Executive Director of New Yorkers Against Gun Violence, is pleased with the decision. Says Hilly:

All the other amendments have reasonable restrictions on them. So I actually really like the Heller decision and the McDonald decision because they put the Second Amendment in the context of all the other amendments… people from the gun lobby like to promote the idea that you have an absolute or god-given right to possess a gun. That’s clearly not true; your right can be restricted.

Mayor Daley is already expected to demand registration of all handguns, mandatory training for gun owners and a limit of one handgun per person. There is nothing in Heller or McDonald that necessarily prohibits broad anti-gun measures requiring training courses, gun and/or ammunition registration, liability insurance, fingerprinting, guns to be kept unloaded, trigger locks, gun registries, waiting periods, background checks, the banning of “assault” weapons, high-capacity magazines, automatic weapons, sawed-off shotguns, and limitations on the type and amount of ammunition.

But an even greater danger is the potential for the future federalization of all gun laws due to the further erosion of federalism because of the incorporation doctrine. Congress and the federal agencies it has created have already federalized a host of ordinary street crimes already covered by state criminal codes.

Conclusion

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As much as the McDonald decision is a victory for residents who want to defend themselves in Chicago and other municipalities with draconian gun laws, this decision also makes it clear that our rights are not natural and absolute. They are subject to the whims of the current members of the Supreme Court.

In view of the McDonald and Heller decisions and the myriad of federal, state, and local gun restrictions and regulations, we might rephrase the Second Amendment this way:

The right of the people to keep and bear arms shall not be infringed by the federal government, except by federal laws that infringe upon that right which are approved by the Supreme Court. The right of the people to keep and bear arms shall not be infringed by the state governments, except by state laws that infringe upon that right which are approved by the Supreme Court.

On page 23 of the McDonald decision, Justice Alito mentions how after the Civil War “the laws of some States formally prohibited Blacks from possessing firearms.” He gives an example of a law in Mississippi that forbade a Negro not in the military and not licensed by his county to “keep or carry fire-arms of any kind.” Does not the same thing exist today for all races in some parts of the United States?

Thomas Jefferson once wrote that “the natural progress of things is for liberty to yield and government to gain ground.” This is especially the case with gun liberty. The price of absolute gun liberty is indeed eternal vigilance.

Laurence M. Vance [send him mail] writes from Pensacola, FL. He regularly contributes articles and book reviews to both secular and religious periodicals.

Copyright © 2010 Campaign for Liberty

The recent Supreme Court case, McDonald v. City of Chicago, has gun rights advocates celebrating. The National Rifle Association and the true champion of gun rights, Gun Owners of America, are hailing this as a landmark decision. As an avid gun enthusiast, collector, NRA Member and Pistol Instructor and life time member of GOA, I am deeply troubled. Let me explain why.

The Bill of Rights, including the 2nd Amendment, were never intended as a check on the powers of the States. They are intended as a check on the Federal government ONLY. The Preamble of the Bill of Rights opens with: “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”. Prevent misconstruction or abuse of power from what? The Federal government of course!

In the Supreme Court case Barron v. Baltimore 32 U.S. 243 (1833), Chief Justice Marshall stated: “But it is universally understood, it is a part of the history of the day, that the great revolution which established the Constitution of the United States was not effected without immense opposition. Serious fears were extensively entertained that those powers which the patriot statesmen who then watched over the interests of our country deemed essential to union, and to the attainment of those invaluable objects for which union was sought, might be exercised in a manner dangerous to liberty. In almost every convention by which the Constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the General Government — not against those of the local governments. In compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed by the required majority in Congress and adopted by the States. These amendments contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them”.

Can’t be much clearer. The Bill of Rights, including the 2nd Amendment, are restrictions against the Federal government NOT the States.

Why then has supposedly Conservative Justices voted to expand the power of the Federal government by interfering in a clearly State matter? How did they come to their conclusions? Well, they would argue and have argued that the Fourteenth Amendment changed everything and made the Bill of Rights enforceable on the States. But does it? So many Supreme Court Justices, lawyers and supposed Constitutional Scholars agree that it does, so therefore, it does! But are they correct? Lets take a look. Here is the first section of the Fourteenth Amendment:

Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Why was this Amendment passed? Well, it was ratified July 9, 1868 a few years after a bloody war. Some of the Southern States were trying to find ways to basically undue the 13th Amendment which freed the slaves. Laws were being passed that kept Black’s from enjoying their newly won freedom. The Fourteenth Amendment was passed to protect the rights of a recently enslaved people who were not considered citizens. This Amendment bestowed United States citizenship (different from State citizenship) on them. The Fifteenth Amendment, ratified nearly two years later, then bestowed upon them the right to vote.

Don’t take my word for it, here is Justice Henry Billings Brown in his majority Plessy v. Ferguson (1896) opinion:

“…but it was said generally that its main purpose (the 14th Amendment)was to establish the citizenship of the negro, to give definitions of citizenship of the United States and of the States, and to protect from the hostile legislation of the States the privileges and immunities of citizens of the United States, as distinguished from those of citizens of the States.” He goes on…“The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either.”

Now, just hold on all of you who are going to argue about this horrible, racist decision that upheld separate but equal laws. I add this because it shows a Supreme Court Justice’s understanding of what the 14th Amendment meant.

Next, another Supreme Court decision that lets us know what the true intent of the Fourteenth Amendment was:

The Slaughter House Cases (1873)

Justice Samuel Freeman Miller who was appointed by none other than Abraham Lincoln wrote extensively on the meaning of the 14th Amendment, particularly the “Privileges or immunities” clause. In his Slaughterhouse opinion he writes: “…We think this distinction and its explicit recognition in this amendment (14th) of great weight in this argument, because the next paragraph of this same section (1st paragraph, section 2), which is the one mainly relied on by the plaintiffs in error, speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several States. The argument, however, in favor of the plaintiffs rests wholly on the assumption that the citizenship is the same, and the privileges and immunities guaranteed by the clause are the same. He goes on….”Of the privileges and immunities of the citizen of the United States, and of the privileges and immunities of the citizen of the State, and what they respectively are, we will presently consider; but we wish to state here that it is only the former which are placed by this clause under the protection of the Federal Constitution, and that the latter, whatever they may be, are not intended to have any additional protection by this paragraph of the amendment.”

An Abraham Lincoln appointee none the less!

So, what does this all mean? We have been hoodwinked by the Federal government and its minions in the Supreme Court. The Federal Frankenstein Monster continues to usurp power at the expense of the State governments and supposed Conservatives are marching in tune. They have drank the Kool-Aid and now believe in National Socialism.

We don’t want or need a Federal government interfering in a States right to regulate firearms. Remember, if Obama gets to pick a few more Justices a 5-4 majority could switch the other way and the Supreme Court could rule that the Federal government has the right to ban all firearms. Then what? The States were and should be the defenders of your individual freedoms. They did long before the current Constitution was in force. Here are some State Constitutions:

Virginia (1776)

SEC. 13. That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.

New York (1777)

XL. And whereas it is of the utmost importance to the safety of every State that it should always be in a condition of defence; and it is the duty of every man who enjoys the protection of society to be prepared and willing to defend it; this convention therefore, in the name and by the authority of the good people of this State, doth ordain, determine, and declare that the militia of this State, at all times hereafter, as well in peace as in war, shall be armed and disciplined, and in readiness for service. That all such of the inhabitants of this State being of the people called Quakers as, from scruples of conscience, may be averse to the bearing of arms, be therefrom excused by the legislature; and do pay to the State such sums of money, in lieu of their personal service, as the same; may, in the judgment of the legislature, be worth. And that a proper magazine of warlike stores, proportionate to the number of inhabitants, be, forever hereafter, at the expense of this State, and by acts of the legislature, established, maintained, and continued in every county in this State.

Massachusetts (1780)

Art. XVII. The people have a right to keep and to bear arms for the common defense. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority and be governed by it.

Connecticut:

SEC. 15. Every citizen has a right to bear arms in defense of himself and the state.

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If the citizens of the Peoples Republic of New York allow their elected officials to trample our rights. Shame on us for not trying to defeat them. But if the people of Vermont and Alaska, Montana and Tennessee want to allow their citizens to own machine guns and carry firearms openly, thank God! Who is the Federal government to tell them they can’t? The Supreme Court decision in Mc Donald v. Chicago is just plain wrong and all Conservatives and Gun lovers who support this should rethink it.

If the States can’t make their own laws concerning Firearms then where does it end? The Federal government will and does dictate every aspect of your lives. The air you breathe, the food you eat, the company you keep and so on and so on. Let’s not be allured by the siren song of the Supreme Court and their supposed defense of our right to keep and bear arms. It’s none of their business. They are leading us right to the rocks and destruction.

Rick Montes [send him email] is the state chapter co-coordinator of the New York Tenth Amendment Center

by Jack Hunter, from The American Conservative

When the City of Chicago banned all handguns recently, countless Americans rightly cried foul. When it looked like the Supreme Court might overturn the ban, gun-rights advocates cheered the decision. But while their heart is in the right place, their enthusiasm is not, as what gun-rights advocates are really cheering is the federal government assuming even more power.

The Bill of Rights was never intended to be a list of individual rights, but a list of things the federal government could not do. Patrick Henry and his anti-federalist friends did not want an all-powerful “national” government and insisted the Bill of Rights be added to the Constitution in order to make crystal clear that the federal government’s powers were few, limited, and only those delegated to it by the states.

The rights to free speech, freedom of religion, and to keep and bear arms were rights the federal government could never take away from the states, allowing states to regulate speech, religion — and yes, firearms — as each saw fit. Today, the Founders would declare federal gun legislation like the Brady Bill to be unconstitutional, pointing to the 2nd, 9th, and 10th amendments. The Founders also would have declared Chicago’s gun ban constitutional (albeit stupid), also pointing to the 9th and 10th amendments. The 2nd amendment does not apply to the Chicago gun ban because the federal government is not involved — nor should it be.

Constitutional historian Kevin Gutzman put the Founders intentions into perspective during an interview with radio host Mike Church: “when we have a Second Amendment, essentially what that means is that the federal government is to have nothing to do with your ownership and use of weapons. But that doesn’t mean that nobody is able to regulate your ownership and use of weapons. If neither the federal government nor the states can regulate ownership of weapons, are we saying that retarded people and insane people and felons and children can all own weapons? Clearly some level of government has to be able to regulate the use and possession of firearms.”

So how can the Supreme Court overturn Chicago’s ridiculous, yet constitutional law using the 2nd amendment? Also, why should conservatives — typically champions for gun rights — be opposed to this court decision? Because this decision would trample the most important right of all — that of the states to limit the power of the federal government.

Reporting on the Chicago controversy, a Washington Times headline this week read, “Gun rights lawyer gives hope to liberal causes: 14th Amendment argument opens to gay rights, abortion.” Using what’s called the “incorporation doctrine,” the Supreme Court has argued that the 14th Amendment, which was meant to protect the basic rights of former slaves after the War for Southern Independence, magically turned the Bill of Rights into a list of individual rights.

If this is true, as the Supreme Court is about to declare once again in the Chicago case, then federal law trumps state law anytime the court sees fit, completely ignoring the Bill of Rights’ intended purpose of limiting federal authority. What some consider a small victory for gun rights is actually a grand defeat for limited government. If Patrick Henry were alive, he would likely be reaching for his musket.

What happens when the court decides that gay marriage is a “right,” or that healthcare is a “right,” two concepts many liberal Democrats already subscribe to? States will be powerless to stop the invention of these and other new “rights” and completely at the mercy of federal judges. Reported the Washington Post: “Justice Stephen Breyer needled the majority about its rather situational view of federalism when it comes to ‘incorporating’ the Second Amendment to make it binding on states rather than just the federal government. ‘Without incorporation, it’s decided by state legislatures,’ he said. ‘With, it’s decided by federal judges.”

In his book Original Intentions: On the Making and Ratification of the United States Constitution, conservative author Mel Bradford warned against embracing unconstitutional court decisions based on situational whims: “Legitimate change in the Constitution can only be made by amendment-not by the will of the High Court, its well-meaning, teleocratic misuse of its originally narrow and specific role within the law. For if it does not keep the law, who will? And if the law itself is personalized or politicized at its source, who among us is secure?”

I’m not a constitutional scholar. In fact, I’m not a scholar of any kind.
My observations, whether on talk radio or in my columns, are the thoughts of an average American with an average education attempting to deduce simple truths about our nation and its government.

But one need not be an expert of any sort to recognize that our federal government has long trended toward increased centralization, sometimes in the name of the Constitution itself.

As Bradford noted, if the federal government is to be the sole arbiter of its own power then there really are no limits to that power, and those who still believe in the Founders’ constitution should not cheer its destruction by championing increased centralization over local control, federal dictates over states’ rights and “conservative” victories that are not.

The “Southern Avenger” Jack Hunter is a conservative commentator (WTMA 1250 AM talk radio) and columnist (Charleston City Paper) living in Charleston, South Carolina. See his blog.

Copyright 2010, The American Conservative

Missouri State Representative Cynthia Davis has introduced the “Firearms Freedom Act” (HB1230) – prefiled for the 2010 legislative session. The bill “Asserts the right of the State of Missouri to regulate the intrastate use and acquisition of certain firearms pursuant to the reserved powers of the state over intrastate commerce and the Second Amendment right to keep and bear arms.”

While the bill’s title focuses solely federal gun regulations, it has far more to do with the 10th Amendment’s mandate that powers not delegated to the federal government are “reserved to the states, respectively, or to the people.” It states:

Amendment X of the Constitution of the United States guarantees to the states and their people all powers not granted to the federal government elsewhere in the Constitution and reserves to the state and people of Missouri certain powers as they were understood at the time that Missouri was admitted to statehood. The guarantee of those powers is a matter of contract between the state and people of Missouri and the United States as of the time that the compact with the United States was agreed upon and adopted by Missouri and the United State

Amendment II of the Constitution of the United States reserves to the people the right to keep and bear arms as that right was understood at the time that Missouri was admitted to statehood, and the guarantee of the right is a matter of contract between the state and people of Missouri and the United States as of the time that the compact with the United States was agreed upon and adopted by Missouri and the United States

Some supporters of the legislation say that a successful application of such a state-law would set a strong precedent and open the door for states to take their own positions on a wide range of activities that they see as not being authorized to the Federal Government by the Constitution.

Firearms Freedom Acts have already passed in both Montana and Tennessee, and have been introduced in a number of other states around the country. (Click here to see the full list)

There’s been no lack of controversy surrounding these laws, either. The Tenth Amendment Center recently reported on the ATF’s position that such laws don’t matter:

The Federal Government, by way of the Bureau of Alcohol, Tobacco and Firearms expressed its own view of the Tenth Amendment this week when it issued an open letter to ‘all Tennessee Federal Firearms Licensees’ in which it denounced the opinion of Beavers and the Tennessee legislature. ATF assistant director Carson W. Carroll wrote that ‘Federal law supersedes the Act’, and thus the ATF considers it meaningless.

Constitutional historian Kevin R.C. Gutzman sees this as something far removed from the founders’ vision of constitutional government:

“Their view is that the states exist for the administrative convenience of the Federal Government, and so of course any conflict between state and federal policy must be resolved in favor of the latter.”

“This is another way of saying that the Tenth Amendment is not binding on the Federal Government. Of course, that amounts to saying that federal officials have decided to ignore the Constitution when it doesn’t suit them.”

Advocates of these efforts say it doesn’t matter if the federal government disagrees, or even threatens states over funding, as they did recently with Oklahoma. Gary Marbut, author of the Montana Firearms Freedom Act, and founder of FirearmsFreedomAct.com took this position in a recent interview with the Tenth Amendment Center:

“We’re not depending on permission from federal judges to be able to effectuate our state-made guns bills. And, we’re working on other strategies to wrest essential and effective power from the federal government and put it where it belongs.“

The principle behind such legislation is nullification, which has a long history in the American tradition. When a state ‘nullifies’ a federal law, it is proclaiming that the law in question is void and inoperative, or ‘non-effective,’ within the boundaries of that state; or, in other words, not a law as far as the state is concerned.

All across the country, activists and state-legislators are pressing for similar legislation, to nullify specific federal laws within their states.

A proposed Constitutional Amendment to effectively ban national health care will go to a vote in Arizona in 2010. Thirteen states now have some form of medical marijuana laws – in direct contravention to federal laws which state that the plant is illegal in all circumstances. And, massive state nullification of the 2005 Real ID Act has rendered the law virtually null and void.

While some advocates concede that a federal court battle has a slim chance of success, they point to the successful nullification of the Real ID Act as a blueprint to resist various federal laws that they see as outside the scope of the Constitution.

Some say that each successful state-level resistance to federal programs will only embolden others to try the same – resulting in an eventual shift of power from the federal government to the States and the People themselves.

Michael Boldin is the founder of the Tenth Amendment Center

Copyright © 2009 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.

In states around the country, there’s a growing movement to address and resist two of the most abused parts of the Constitution – the Commerce Clause and the 2nd Amendment.  Already being considered in a number of state legislatures, and passed as law in Montana and Tennessee this year, the Firearms Freedom Act (FFA) is a state law that seeks to do just that.

The latest to join the FFA movement?  Kentucky.  Pre-filed for the 2010 legislative session, HB87 seeks to “Create new sections of KRS Chapter 237, relating to firearms, firearm accessories and ammunition that are made in Kentucky, marked made in Kentucky, and used in Kentucky, to specify that these items are exempt from federal law”

While the FFA’s title focuses on federal gun regulations, it has far more to do with the 10th Amendment’s limit on the power of the federal government.  The bills in state houses contain language such as the following:

“federal laws and regulations do not apply to personal firearms, firearm accessories, or ammunition that is manufactured in [this state] and remains in [state]. The limitation on federal law and regulation stated in this bill applies to a firearm, a firearm accessory, or ammunition that is manufactured using basic materials and that can be manufactured without the inclusion of any significant parts imported into this state.”

NULLIFICATION

Some supporters of the legislation say that a successful application of such a state-law would set a strong precedent and open the door for states to take their own positions on a wide range of activities that they see as not being authorized to the Federal Government by the Constitution.

The principle behind such legislation is nullification, which has a long history in the American tradition. When a state ‘nullifies’ a federal law, it is proclaiming that the law in question is void and inoperative, or ‘non-effective,’ within the boundaries of that state; or, in other words, not a law as far as the state is concerned.

All across the country, activists and state-legislators are pressing for similar legislation, to nullify specific federal laws within their states.

A proposed Constitutional Amendment to effectively ban national health care will go to a vote in Arizona in 2010.  Fourteen states now have some form of medical marijuana laws – in direct contravention to federal laws which state that the plant is illegal in all circumstances.  And, massive state nullification of the 2005 Real ID Act has rendered the law nearly void.

ENOUGH IS ENOUGH

Supporters say the growth of such a movement is long overdue. 

“For far too long elected officials and unelected bureaucrats at the federal level have passively forgotten or actively neglected the Tenth Amendment that guarantees rights not enumerated in the Constitution be left to the individual states,” said Minnesota State Rep. Tom Emmer, who introduced an FFA in his state. “The willful disregard of the Tenth Amendment in relation to a citizen’s right to bear arms isn’t the only constitutional infringement that we should be worried about, but it is one that has been singled out by the new administration.”

“Enough is enough,” urged Tennessee State Senator Mae Beavers. “Our founders fought too hard to ensure states’ sovereignty and I am sick and tired of activist federal officials and judges sticking their noses where they don’t belong.”

LITIGATION

In October, the Montana Shooting Sports Association (MSSA) and the Second Amendment Foundation (SAF) filed a lawsuit in federal court in Missoula, MT to validate the principles and terms of the Montana Firearms Freedom Act (MFFA).

“We feel very strongly that the federal government has gone way too far in attempting to regulate a lot of activity that occurs only in-state,” explained MSSA President Gary Marbut. “The Montana Legislature and governor agreed with us by enacting the MFFA.  It’s time for Montana and her sister states to take a stand against the bullying federal government, which the Legislature and Governor have done and we are doing with this lawsuit. We welcome the support of many other states that are stepping up to the plate with their own firearms freedom acts.”

Even the most ardent supporters suggest that the real test will come if the federal courts rule against the FFA.  Will they give up at that point, or will they follow in the footsteps of medical marijuana activists around the country? 

The latter faced down nearly the entire federal apparatus – federal agencies who didn’t recognize state law, countless federal raids and arrests, and a Supreme Court that ruled against their cause in 2005.  Even with such stacked odds, they persisted in their state-level efforts, and today, enough states have medical marijuana laws that the federal government is unable (or unwilling) to oppose them.

Only time will tell if gun rights activists have the same courage.

Copyright © 2009 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.

According to a report published on the Tenth Amendment Center’s web site, “Introduced in the Ohio House on October 16, 2009, the ‘Firearms Freedom Act’ (HB-315) seeks ‘To enact section 2923.26 of the Revised Code to provide that ammunition, firearms, and firearm accessories that are manufactured and remain in Ohio are not subject to federal laws and regulations derived under Congress’ authority to regulate interstate commerce and to require the words “Made in Ohio” be stamped on a central metallic part of any firearm manufactured and sold in Ohio.’”

The report went on to say, “While the HB315′s title focuses on federal gun regulations, it has far more to do with the 10th Amendment’s limit on the power of the federal government. It specifically states:

“‘The regulation of intrastate commerce is vested in the states under the Ninth and Tenth Amendments to the United States Constitution, particularly if not expressly preempted by federal law. The congress of the United States has not expressly preempted state regulation of intrastate commerce pertaining to the manufacture on an intrastate basis of firearms, firearm accessories, and ammunition.’

“Some supporters of the legislation say that a successful application of such a state-law would set a strong precedent and open the door for states to take their own positions on a wide range of activities that they see as not being authorized to the Federal Government by the Constitution.”

See the report here.

Two states have already passed their own Firearms Freedom Acts: Montana and Tennessee. And, along with Ohio, at least 7 other states have introduced similar bills. Those states are Alaska, Florida, Michigan, Minnesota, Pennsylvania, South Carolina, and Texas.

More information regarding the status of these State bills can be seen here.

As you might suspect, the federal government doesn’t take too kindly to these State laws. In fact, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) sent an open letter to all Montana and Tennessee firearms dealers denouncing the State laws. ATF assistant director Carson Carroll wrote that “Federal law supersedes the Act.”

The Tenth Amendment Center quotes constitutional historian Kevin Gutzman as correctly stating, “Their [ATF's] view is that the states exist for the administrative convenience of the Federal Government, and so of course any conflict between state and federal policy must be resolved in favor of the latter.

“This is another way of saying that the Tenth Amendment is not binding on the Federal Government. Of course, that amounts to saying that federal officials have decided to ignore the Constitution when it doesn’t suit them.”

Ah! But that’s just the problem: the federal government has been ignoring the Constitution for decades–so much so that if there is going to be any restoration of genuine liberty in the country, the states are going to have to stand up to this out-of-control national leviathan and say, “No.” And they are going to have to say it loudly enough for Washington to get the message. And I cannot think of a freedom issue that is better to “draw a line in the sand” for than the issue of the right of the people to keep and bear arms.

At the end of the day, the Second Amendment was never about hunting or target shooting. It has always been about protecting the people and states against federal tyranny.

The Second Amendment itself states, “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.” (Emphasis added.) Note that the purpose of the right to keep and bear arms was to insure “the security of a FREE STATE.” (Emphasis added.) “Free from what?” you ask. Free from federal tyranny. Free from an overbearing, encroaching, heavy-handed, would-be national government.

The founders–even the Centralists of the day–all acknowledged that the right to keep and bear arms was, first of all, for the protection of the people against government tyranny. Observe:

“[I]f circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens.” (Alexander Hamilton, The Federalist Papers, Number 29)

“While the people have property, arms in their hands, and only a spark of noble spirit, the most corrupt Congress must be mad to form any project of tyranny.” (Rev. Nicholas Collin, Fayetteville [NC] Gazette, October 12, 1789)

“The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government.” (Thomas Jefferson)

“Who are the militia? Are they not ourselves? . . . Congress has no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American . . . [T]he unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.” (Tench Coxe, ally of James Madison and member of the Continental Congress, Freeman’s Journal, February 20, 1778)

Coxe also said, “As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article [the Second Amendment] in their right to keep and bear their private arms.” (Remarks on the First Part of the Amendments to the Federal Constitution, Philadelphia Federal Gazette, June 18, 1789)

So, for now, 10 states have proposed–and 2 have passed–a Firearms Freedom Act, properly declaring that federal authority granted in the Constitution regarding interstate commerce cannot apply to products (firearms, in this case) that are manufactured and sold within the territory of each respective State. In other words, 10 States are serving notice to Washington, D.C., that they are going to insist that the federal government stop ignoring the Constitution of the United States.

In the same vein, Tennessee State legislator Susan Lynn recently sent an open letter to the State legislative bodies of the other 49 states stating:

“On June 23, 2009, House Joint Resolution 108, the State Sovereignty Resolution, was signed by Governor Phil Bredesen. The Resolution created a committee which has as its charge to:

• Communicate the resolution to the legislatures of the several states,
• Assure them that this State continues in the same esteem of their friendship,
• Call for a joint working group between the states to enumerate the abuses of authority by the federal government, and
• Seek repeal of the assumption of the powers and the imposed mandates.”

In the body of her letter, Rep. Lynn states, “The role of our American government has been blurred, bent, and breached. The rights endowed to us by our creator must be restored.”

The Tennessee State representative continued by saying, “The Constitution does not include a congressional power to override state laws. It does not give the judicial branch unlimited jurisdiction over all matters. It does not provide Congress with the power to legislate over everything. This is verified by the simple fact that attempts to make these principles part of the Constitution were soundly rejected by its signers.

“With this in mind, any federal attempt to legislate beyond the Constitutional limits of Congress’ authority is a usurpation of state sovereignty–and unconstitutional.”

See Rep. Lynn’s letter here.

This is a battle that is just beginning to heat up, but promises to get red-hot in the not-too-distant future. As for me and my house, we believe this showdown is long overdue. To quote Patrick Henry, “Let it come! I repeat it, Sir, let it come!”

Chuck Baldwin is a radio broadcaster, syndicated columnist, and pastor dedicated to preserving the historic principles upon which America was founded. He was the Constitution Party’s Nominee for president in 2008. Visit his website at www.chuckbaldwinlive.com

Copyright © 2009 Chuck Baldwin

There are few topics that can divide people who are normally ideological bedfellows like the legal doctrine of the “incorporation” of the Bill of Rights against the states and the Second Amendment. This subject is rearing its head again with the upcoming appointment of a new Supreme Court justice as well as federal courts’ recent conflicting opinions in regards to the Second Amendment.

The Wall Street Journal reports that on June 2nd, “A federal appeals court in Chicago ruled … that the Second Amendment doesn’t bar state or local governments from regulating guns, adopting the same position that Judge Sonia Sotomayor, President Barack Obama’s nominee to the Supreme Court, did when faced with the same question earlier this year.”

This ruling contrasts with a recent ruling by “the U.S. Ninth Circuit Court of Appeals in San Francisco … that the Second Amendment is incorporated against the states and local governments” — in other words, states and local governments are bound by the Second Amendment. Which court is correct?

To understand the debate in this topic, it helps to briefly review constitutional history. When the Constitution was first proposed, opponents of the new document criticized it for lacking a bill of enumerated rights, which were common in virtually every state constitution of the time. In response to these complaints, proponents of the new Constitution agreed to add a series of amendments in the first Congress that would codify restrictions on the federal government to infringe certain fundamental rights. The resulting first 10 Amendments, collectively referred to as the “Bill of Rights,” were ratified on December 15, 1791.

It is important to note two little-known historical facts regarding the proposal and ratification of the Bill of Rights. Alexander Hamilton, himself a prominent advocate of a liberal reading of the necessary and proper clause as well as a loose construction of the Constitution, argued that a Bill of Rights would be dangerous because it would imply that without such an enumeration of rights, the new government might actually have the power to infringe on these rights and might even now open the door for the government to regulate in these areas. In Federalist # 84, Hamilton wrote:

I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? … I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government.

Hamilton basically was saying that the national government lacked the power to do any of the things that the proposed Bill of Rights were prohibiting, and codifying these restrictions might lead some to argue that the national government could actually regulate in those areas, which he felt was completely unconstitutional.

In addition, James Madison, widely regarded as “The Father of the Constitution,” wanted to have the Bill of Rights restrictions to be held against the states but was rebuffed in this effort because of widely held reservations to further empower the new government over the states. The first Congress refused to even submit such a proposal to the states for ratification because it was so unpopular. As a matter of fact, numerous states had gun-control laws on the books at the time, as well as state-chartered religions. It was not that the citizens were necessarily opposed to state involvement in these matters but rather did not want any federal intrusion.

These two historical facts illustrate that, at the time of the ratification of the Bill of Rights, it was recognized by the Framers and Ratifiers that the national government had no authority to enforce the Bill of Rights against the states, and whatever authority it did have was clearly delineated in the text of the Constitution itself.

Therefore, the Bill of Rights did not give the national government any new powers but simply reiterated important restrictions upon it and not the states. This understanding is consistent with the position that not only does the Second Amendment protect an individual “right to bear arms” against federal action but also that the national government lack any power whatsoever to regulate within this area. Additionally, the states are free to regulate (or not regulate) in that area based on their own state constitutions.

The fact that the Bill of Rights did not apply against the states was not modified until after the ratification of the 14th Amendment and the judicial creation of the incorporation doctrine. The incorporation doctrine refers to the court selectively “incorporating” certain amendments in the Bill of Rights against state governments via a liberal reading of the 14th Amendment — completely contrary to the original understanding at the time of its ratification as explained by widely respected legal scholar Raoul Berger in Government by Judiciary: The Transformation of the Fourteenth Amendment.

As the late Congressman Larry McDonald explained, the rationale behind the incorporation doctrine “runs completely contrary to thoughts and purposes of the original framers…. Their intent was to limit the rights and powers of the federal government, not to help expand them.”

The courts liberal interpretation allowed the federal courts to widen their jurisdiction and judicially review numerous state laws. Some libertarians welcome this development in constitutional history as a great opportunity to spread freedom because it gives advocates of individual liberty “two bites at the freedom apple — one under his state constitution and one under the U.S. Constitution.” Sadly, the constitutional record of incorporation is not something many advocates of individual liberty can be proud of.

Constitutional historian Kevin R.C. Gutzman details the sordid history of the incorporation doctrine:

This is what the Incorporation Doctrine has given us: in place of reservation of these areas of law to state governments for regulation via legislative elections, we get seizure of control over them by unelected, unaccountable, politically connected lawyers (that is, federal judges) who purport to substitute “reason” for the (one infers) “unreasonable” regulations crafted by elected officials…. It was under the cover of the Incorporation Doctrine that federal courts recently invented a right of child rapists not to face the ultimate penalty for their crimes.  It was under the cover of the Incorporation Doctrine, indeed, that a Supreme Court majority for several years banned capital punishment altogether. It was under the cover of the Incorporation Doctrine that the Supreme Court eliminated state prohibitions of various types of pornography. The Incorporation Doctrine also underlies the Court-created ban on prayer, even on moments of silence, in public schools. The Incorporation Doctrine has allowed federal courts to invent rights to burn flags, ban invocations at high school graduations, and establish essentially a national code of “acceptable” punishments.

Furthermore, it was with the help of the incorporation doctrine that the “politically connected lawyers” on the court were able to invent “penumbras” giving rise to the infamous Roe v. Wade decision, and there were even discussions at the height of judicial activism to engrain a right to a minimum wage within constitutional law. Libertarians should be careful what they wish for because the “interpreters” on the court do not always see eye-to-eye with their vision of liberty.

Ironically, libertarian proponents of incorporation who usually are almost universally opposed to state power, let alone massively centralizing power in a super state, are in effect advocating the use of a larger, more powerful central government (via its court system) to force smaller governments to “be more free” without recognizing the fact that freedom means different things to different people. Such a contradictory line of thought is in direct conflict with the proud Jeffersonian decentralist tradition of those who founded our constitutional republic.

This leads us back to gun-rights activists who are currently expending numerous resources trying to get federal judges to incorporate the bill of rights against the states. Ironically, years of money spent trying to get federal judges to advance the cause of gun rights resulted in the disappointing Supreme Court decision in District of Columbia v. Heller where the “conservatives” on the court acknowledged that the Second Amendment protects an individual right “to bear arms” but that right is not “unlimited” and there is still room for reasonable restrictions on gun control.

As renowned constitutional attorney Edwin Vieira, Jr. wrote last fall in The New American, “Could Heller allow gun regulation to the point that the regulation could become a prohibition for all practical purposes? What effect will it have, if any, on existing or future gun laws in other jurisdictions throughout the country?”

The Heller decision was disheartening to gun rights advocates who believed that vast amounts of money spent on endless legal challenges would engrain an unlimited right to gun ownership in our constitutional law. Related efforts to incorporate the limited protections of Heller against the state will face similar frustration.

Those who put their faith in “politically connected lawyers” to uphold their rights and advance the cause of freedom will continue to be disappointed. Perhaps these activists will now realize that federal judges are not reliable friends of individual liberty and instead will focus their energy on a much more realistic goal of making Congress constitutional.

Patrick Krey works in finance and has an M.B.A., J.D. (law degree), an L.L.M. (masters of law) from the University of Buffalo, and is an Attorney admitted to practice in New York State. He is also a freelance writer – his work has been published online at JBS.org, PrisonPlanet.com, Antiwar.com and in The New American bi-weekly print magazine. He is also the host of the online radio show The Constitutional Coalition.

What use is the political left? This is a serious question, not a rant. The same question can be asked about the political right. The question does not imply derogatory implications about individuals on the political left or the political right. Rather, the question concerns the basket of emotions, issues, and knee-jerk responses associated with the political left and the political right.

Traditionally, the political left has had a Benthamite view of government, seeing government power as the tool for improving society whether through revolution or reform. Paradoxically, the political left has believed in Big Government despite the political left’s emphasis on civil liberty. The political left sees government power not as a threat to civil liberty but as a tool for enforcing civil liberty; for example, through Brown vs. Board of Education and coerced integration in the southern states.

Traditionally, the political right has had a Blackstonian view of government, distrusting government power as a threat to individual liberty. Paradoxically, conservatives value individual liberty while tending to view civil liberties as protective devices for criminals and, currently, terrorists.

The political left tends to blame problems on existing societal institutions, especially on capitalism, which is believed to foster greed and private power that is not accountable to the people. The political right blames problems on human fallibility and on laws and regulations that create the wrong incentives and that replace private action with government action.

The Founding Fathers, being mild revolutionaries, set up a Blackstonian Constitution in which law is a shield of the people and not a weapon in the hands of government. The Founders balanced this restraint on government with reformist democracy that works against status quo hierarchies.

Another essential difference between the left and the right is “compassion.” The left tends to regard criminals, the poor, misfits and failures as victims of society and reacts with excuses and social safety nets. The political right emphasizes individual accountability. In a world of pragmatists, differences in emphasis would be compromised. But ideologies are different. Ideologies run to extremes. They are fighting creeds that demonize opponents.

Whether one stands with the left or the right, it is apparent that both political factions are failing the country. The right responded to 9/11 by asserting American hegemony over international law and by permitting the executive branch to waive civil liberties. The political left went along with these developments, perhaps thinking to use the enhanced power of government for its own purposes later. Hoping to restrain the executive’s assaults on the Middle East and civil liberties, the electorate gave control over Congress to the Democrats in the last election. However, the Democrats have not ended the war or overturned the encroachments upon civil liberties.

There can be little doubt that the Republicans have brought discredit upon themselves. The question is: now that the political right has damaged the Blackstonian civil liberties that restrain the Benthamite impulse, what will the political left do with executive power when it regains it?

The “war on terror” has further eroded the Blackstonian check on Benthamite impulses just as Lincoln’s Civil War, the Great Depression and the New Deal did earlier. Our political system has become unbalanced. The Civil War effectively erased the Tenth Amendment, ended states rights and concentrated political power in the central government, thus undermining the Republic. The New Deal undermined the legislative power of Congress by giving the executive agencies the right to make law by writing the regulations that interpret statutes. The Bush administration has used the war on terror to assert executive branch hegemony over international law and the Constitution.

The foundation is in place for rule by the executive. Normally this is called dictatorship. The tendency is always strong to look to the executive for leadership. With elite power now concentrated in a few material interests and the demise of an independent news media (except for the Internet), we face a future with a more powerful and less accountable executive.

Those with agendas will welcome this development, but the fight to gain executive power will become more vicious than ever. The people are diminished as government accountability declines. An important buttress to the power of the citizenry is the Second Amendment with its implication that the people have the right to overthrow a government that abandons the Constitution and oppresses the people.

The gun control movement reifies guns and attributes to inanimate objects the behavioral failings of humans. Events such as the Blacksburg shootings by a deranged student provide powerful propaganda for gun control. Those who would overturn the Second Amendment should not proceed blind to the fact that stripped of the right to bear arms, the people would be stripped of the right and the means to resist government oppression.

The demise of the Second Amendment would result in a critical change in psychology. The creed that government is answerable to the people would fade away as the American people are transformed from citizens empowered to hold government accountable to mere subjects of executive power.

Paul Craig Roberts wrote the Kemp-Roth bill and was Assistant Secretary of the Treasury in the Reagan administration. He was Associate Editor of the Wall Street Journal editorial page and Contributing Editor of National Review. He is author or coauthor of eight books, including The Supply-Side Revolution (Harvard University Press). He has held numerous academic appointments, including the William E. Simon Chair in Political Economy, Center for Strategic and International Studies, Georgetown University and Senior Research Fellow, Hoover Institution, Stanford University. He has contributed to numerous scholar journals and testified before Congress on 30 occasions. He has been awarded the U.S. Treasury’s Meritorious Service Award and the French Legion of Honor. He was a reviewer for the Journal of Political Economy under editor Robert Mundell. He is the co-author of The Tyranny of Good Intentions. He is also coauthor with Karen Araujo of Chile: Dos Visiones – La Era Allende-Pinochet (Santiago: Universidad Andres Bello, 2000).

Copyright © Creators Syndicate

Speech before the US House of Representatives, April 9, 2003

Mr. Speaker, I rise today as a firm believer in the Second amendment and an opponent of all federal gun laws. In fact, I have introduced legislation, the Second Amendment Restoration Act (HR 153), which repeals misguided federal gun control laws such as the Brady Bill and the assault weapons ban. I believe the Second amendment is one of the foundations of our constitutional liberties.

However, Mr. Speaker, another foundation of those liberties is the oath all of us took to respect constitutional limits on federal power. While I understand and sympathize with the goals of the proponents of the Protection of Lawful Commerce in Arms Act (HR 1036), this bill exceeds those constitutional limitations, and so I must oppose it.

It is long past time for Congress to recognize that not every problem requires a federal solution. This country’s founders understood the need to separate power between federal, state, and local governments to maximize individual liberty and make government most responsive to citizens.

The reservation of most powers to the states strictly limited the role of the federal government in dealing with civil liability matters; it reserved jurisdiction over matters of civil tort, such as alleged gun-related negligence suits, to the state legislatures.

While I am against the federalization of tort reform, I must voice my complete disapproval of the very nature of these suits brought against gun manufacturers. Lawsuits for monetary damages from gun violence should be filed against the perpetrators of those crimes, not gun manufacturers!

Holding manufacturers liable for harm they could neither foresee nor prevent is irresponsible and outlandish. The company that makes a properly functioning product in accordance with the law is acting lawfully, and thus should not be taken to court because of misuse by the purchaser (or in many cases, by a criminal who stole the weapon). Clearly these lawsuits are motivated not by a concern for justice, but by a search for deep pockets and a fanatical anti-gun political agenda.

However, Mr. Speaker, the most disturbing aspect of these lawsuits is the idea that guns, which are inanimate objects, are somehow responsible for crimes. HR 1036 shifts the focus away from criminals and their responsibility for their actions. It adds to the cult of irresponsibility that government unfortunately so often promotes.

This further erodes the ethics of individual responsibility for one’s own actions that must form the basis of a free and moral society. The root problem of violence is not the gun in the hand, but the gun in the heart: each person is accountable for the deeds that flow out of his or her own heart.

One can resort to any means available to commit a crime, such as knives, fertilizer, pipes, or baseball bats. Should we start suing the manufacturers of these products as well because they are used in crimes? Of course not – the implications are preposterous.

Finally, Mr. Speaker, I would remind my fellow supporters of gun rights that using unconstitutional federal powers to restrict state gun lawsuits makes it more likely those same powers will be used to restrict our gun rights. Despite these lawsuits, the number one threat to gun ownership remains a federal government freed of its constitutional restraints.

Expanding that government in any way, no matter how just the cause may seem, is not in the interests of gun owners or lovers of liberty.

In conclusion, while I share the concern over the lawsuits against gun manufacturers, which inspired HR 1036, this bill continues the disturbing trend toward federalization of tort law. Enhancing the power of the federal government is not in the long-term interests of defenders of the Second amendment and other constitutional liberties. Therefore, I must oppose this bill.