Archive for the ‘2nd Amendment Rights’ Category

Tenth Amendment Center
Lesley Swann
August 18, 2010

constitution

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under that Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” – Article VI, Clause 2 of the U.S. Constitution

Recently I attended a gun show, where I handed out information material and answered questions on the Tenth Amendment Center.  Several people were concerned about the U.S. making a treaty that would gut the U.S. Constitution and potentially take away firearms from law abiding citizens here in the U.S.  They argued that the paragraph above from the Constitution places treaty law above the Constitution as the supreme law of the land.

Our Founders very clearly stated the conditions under which the U.S. Constitution could be amended, or changed, in Article 5.  It is quite illogical to conceive that our Founders would write such a brilliant document to be the foundation of our union, only to create a giant backdoor for foreign governments to come in and destroy the liberty we had worked so hard to achieve.   In fact, our Founders themselves said otherwise.

“The only constitutional exception to the power of making treaties is that it shall not change the Constitution…” – Alexander Hamilton

“I do not conceive that power is given to the President or the Senate to dismember the empire, or alienate any great, essential right.  I do not think the whole legislative authority to have this power.”  – James Madison

“I say the same as to the opinion of those who consider the grant of treaty-making power to be boundless.  If it is, then we have no Constitution.” – Thomas Jefferson

So, when I began re-reading this section of the Constitution I realized that they didn’t leave a backdoor, but in fact were expressly forbidding this type of maneuver in Article VI.  The answer to the riddle that confuses many people isn’t to be found in an indecipherable tome on constitutional law, but instead in simple English grammar and a little attention to detail.

In reading through the entire Constitution, you will notice that whenever the Constitution refers to itself the verbiage “this Constitution” is used.  The only exceptions to this are the President’s Oath of Office, where the phrase “the Constitution of the United States” is used, and here in the latter part of Article VI.  In every other place where you find the word Constitution written in the Constitution itself, it is preceded by the word “this” making it clear that the Constitution is referring to itself.  In the President’s Oath of Office the phrase “Constitution of the United States” makes it perfectly clear that the phrase is referring to this Constitution as well.

The Founders were very clear and precise with their use of language in the Constitution, so why do we have “the Constitution” in this case (“any Thing in THE Constitution or Laws of any State to the Contrary notwithstanding”), and “this Constitution” in all other cases where the word is written.  The simple answer is that in this case, they were not referring to the United States Constitution at all.

The humble preposition is the key to solving the intent of the Founders in this statement.  A prepositional phrase – such as of, to, or in – is a word that can modify and indicate relationships.  Prepositional phrases can also modify more than one object.  In this case, the prepositional phrase “of any State” refers to both the words“Constitution” and “Laws” that precede the phrase.  This means that the final phrase of this clause could rightly be read to mean “any Thing in the Constitution of any State or Laws of any State to the Contrary notwithstanding.” The Founders weren’t saying that treaties were to be supreme over the U.S. Constitution, but that they could and would take precedence over the state constitutions and laws.

It is clear with a little analysis of the details of the language and grammar used to construct this clause that our Founders were placing treaty law in its rightful place – beneath the supreme law of the land in the form of our U.S. Constitution, but above the laws and constitutions of the states.  There is no loophole that can allow international interests to trump the U.S. Constitution, but the treaty must be made in pursuance of our Constitution, just as all laws that Congress makes must be in pursuance of the Constitution.

While some well-meaning (and not-so-well-meaning) politicians may claim that they can legislate via treaty, this clearly was not the intent of our Founders.  Will this knowledge stop those who would seek to take our freedoms from shredding the Constitution by attempting to pass such treaties?  Probably not.  But we can rest firm in the knowledge that our Founders did not give the Federal government the power to usurp the Constitution by treaty, and that the Constitution is the supreme law of the land, not treaty law.  More importantly, we can use this knowledge as intellectual firepower to stop the enemies of liberty and the Second Amendment from doing so.

Lesley Swann is the state coordinator for the Tennessee Tenth Amendment Center and founder of the East Tennessee 10th Amendment Group. She is a native of Anderson County, Tennessee.

Activist Post
August 31, 2010

Rights are Privileges (Freedom is Slavery): The primary duty of all public officials is to protect the rights of citizens as defined in the Constitution, where they shall not make or enforce any laws that violate those rights.  In fact, the “checks and balances” were put in place to assure that rights of citizens are not being trampled by one branch of the government. After 9-11, President Bush and other public officials proclaimed that their most important job was protecting the safety of the American people, which basically put an end to our rights coming first.

If the corporate-government fear campaign fails to scare the rights away from citizens, they try to convince the public that rights are now privileges and charge a fee or a tax for the “right” to engage in a certain activity.

Here are a few recent examples where rights are eroding into privileges:

  • Air travel has become a privilege since 9-11.  We must now forfeit all rights to our physical being by submitting to naked body scanners that emit unhealthy levels of radiation, or open-palm invasive frisking.  Everyone is assumed to be guilty until thoroughly cavity checked for explosives.
  • Free-speech Blogging on the Internet is now the target of taxes and licensing fees — the trial financial assault before free speech is ultimately killed with the end of net neutrality. Philadelphia is seeking a blog tax, while South Carolina has attempted to require all controversial speech groups to register, of course with a fee attached.
  • Food rights may be disappearing faster than any other rights.  Armed raids on raw milk producers and the proposed senate bill S.510 that seeks to essentially criminalize local food are the pinnacle of corporate-government tyranny.
  • Rights to use Rainwater is becoming illegal or being taxed by the overlords who control mother nature and the slaves who dare to use her resources.  Your basic right to nature’s sustenance is now a taxable privilege in the land of the free.
  • Gun rights are under continued pressure by the government and the media to make us believe it is a privilege to own guns.
  • Capital rights, or the freedom to spend or invest our own money, are now under assault with capital controls.
  • Property rights erode every time property taxes are jacked up because the Fed creates inflation.  We own less and less of our property each day the dollar devalues. Property rights also erode as more strict zoning regulations continually pass.

Bloomberg
Greg Stohr
June 28, 2010

A divided U.S. Supreme Court said the constitutional right to bear arms binds states and cities, as well as the federal government, in a decision that raises questions about gun laws around the country.

The ruling doesn’t create any new unlimited right for individuals to carry weapons while restricting the power of cities and states to regulate firearms. A 5-4 majority said Chicago went too far by banning handguns even for self-defense in the home. The Chicago ordinance is now unenforceable, its mayor said, though the law remains in effect pending lower court proceedings.

The ruling leaves open the ability of states and cities to ban possession by convicted felons and mentally ill people and laws against bringing guns into schools or government buildings.

Chicago is the only major city with a blanket handgun ban, after a 2008 Supreme Court decision struck down a similar ban in Washington, D.C., a federal enclave. Jurisdictions with narrower weapons restrictions, including New York City, may now face new legal challenges.

The right to bear arms “is fully binding on the states and thus limits (but by no means eliminates) their ability to devise solutions to social problems that suit local needs and values,” Justice Samuel Alito wrote for the court.

Right to Bear Arms

The justices said the right to bear arms was among the central guarantees protected against state and local interference through a constitutional amendment after the Civil War.

“It is clear that the framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty,” Alito wrote.

Today’s ruling broadens the sweep of the court’s 2008 ruling interpreting the Constitution’s Second Amendment as protecting the rights of individuals, rather than just those of state-run militias. It’s a victory for the National Rifle Association, which joined a group of Chicago residents in challenging the city’s laws.

Chicago Mayor Richard M. Daley said the ruling made his city’s 28-year-old ban “unenforceable.” Daley said he was “disappointed but not surprised.”

Gun Control Advocates

Gun control advocates question said the ruling wasn’t likely to lead to the invalidation of more than a handful of gun laws.

“The gun lobby and gun criminals will use it to try to strike down gun laws, and those legal challenges will continue to fail,” said Paul Helmke, president of the Brady Center and Brady Campaign to Prevent Gun Violence.

New York Mayor Michael Bloomberg said in a statement that the two high court rulings mean that “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,” The mayor is founder and majority owner of Bloomberg News parent Bloomberg LP.

The decision, which came on the last day of the court’s nine-month term, divided the justices along lines that have become commonplace. Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas joined Alito in the majority.

In dissent, Justice Stephen Breyer faulted the majority for “transferring ultimate regulatory authority over the private uses of firearms from democratically elected legislatures to courts or from the states to the federal government.”

Dissenting Justices

Justices John Paul Stevens, Ruth Bader Ginsburg and Sonia Sotomayor also dissented.

The high court’s 2008 decision said the right to bear arms “is not unlimited.” The majority said the ruling didn’t cast doubt on laws barring handgun possession by convicted felons and the mentally ill or restrictions on bringing guns into schools or government buildings.

“We repeat those assurances here,” Alito wrote. “Despite municipal respondents’ doomsday proclamations, incorporation does not imperil every law regulating firearms.”

Like the rest of the Bill of Rights, the Second Amendment was originally aimed only at the federal government. The Supreme Court in the 19th century refused to apply the Second Amendment to the states.

More recently, the court has said that some, though not all, of the rights in the first eight amendments are so fundamental that they are “incorporated” into the 14th Amendment’s due process clause, which binds the states.

No Doctrinal Shift

In saying that the Second Amendment is incorporated as well, the court declined to usher in a major doctrinal shift, as some litigants had sought. Advocates across the ideological spectrum urged the justices to rely on the privileges-or- immunities clause, a long dormant provision in the 14th Amendment.

Such a step might have reinforced established constitutional rights including abortion and opened the door to broader protection of other guarantees, including property rights.

Chicago has been the only major U.S. city with a blanket prohibition on handguns. The ban was challenged by four Chicago residents, including Otis McDonald, a 76-year-old homeowner in the Morgan Park neighborhood on the city’s South Side.

McDonald, who says his home has been broken into at least three times, says he wants to keep a handgun by his bed for protection.

The case is McDonald v. City of Chicago, 08-1521.

Reuters
Arshad Mohammed
October 6, 2009

The United States reversed policy on Wednesday and said it would back launching talks on a treaty to regulate arms sales as long as the talks operated by consensus, a stance critics said gave every nation a veto.

The decision, announced in a statement released by the U.S. State Department, overturns the position of former President George W. Bush’s administration, which had opposed such a treaty on the grounds that national controls were better.

U.S. Secretary of State Hillary Clinton said the United States would support the talks as long as the negotiating forum, the so-called Conference on the Arms Trade Treaty, “operates under the rules of consensus decision-making.”

“Consensus is needed to ensure the widest possible support for the Treaty and to avoid loopholes in the Treaty that can be exploited by those wishing to export arms irresponsibly,” Clinton said in a written statement.

While praising the Obama administration’s decision to overturn the Bush-era policy and to proceed with negotiations to regulate conventional arms sales, some groups criticized the U.S. insistence that decisions on the treaty be unanimous.

“The shift in position by the world’s biggest arms exporter is a major breakthrough in launching formal negotiations at the United Nations in order to prevent irresponsible arms transfers,” Amnesty International and Oxfam International said in a joint statement.

However, they said insisting that decisions on the treaty be made by consensus “could fatally weaken a final deal.”

“Governments must resist US demands to give any single state the power to veto the treaty as this could hold the process hostage during the course of negotiations. We call on all governments to reject such a veto clause,” said Oxfam International’s policy adviser Debbie Hillier.

The proposed legally binding treaty would tighten regulation of, and set international standards for, the import, export and transfer of conventional weapons.

Supporters say it would give worldwide coverage to close gaps in existing regional and national arms export control systems that allow weapons to pass onto the illicit market.

Nations would remain in charge of their arms export control arrangements but would be legally obliged to assess each export against criteria agreed under the treaty. Governments would have to authorize transfers in writing and in advance.

The main opponent of the treaty in the past was the U.S. Bush administration, which said national controls were better. Last year, the United States accounted for more than two-thirds of some $55.2 billion in global arms transfer deals.

Arms exporters China, Russia and Israel abstained last year in a U.N. vote on the issue.

The proposed treaty is opposed by conservative U.S. think tanks like the Heritage Foundation, which said last month that it would not restrict the access of “dictators and terrorists” to arms but would be used to reduce the ability of democracies such as Israel to defend their people.

The U.S. lobbying group the National Rifle Association has also opposed the treaty.

A resolution before the U.N. General Assembly is sponsored by seven nations including major arms exporter Britain. It calls for preparatory meetings in 2010 and 2011 for a conference to negotiate a treaty in 2012.

Tom Remington
Black Bear Blog
July 24, 2009

The approval of Sonia Sotomayor as a Supreme Court
justice is vitally important, especially due to the fact
that she is anti Second Amendment and has shown
little regard for the original intent of the Constitution.

The several states are lining up to reclaim their sovereignty and telling the federal government to butt out. This is being done in myriad ways but all are related in that most claim that the Tenth Amendment protects the states from federal tyranny. States are passing resolutions, memorials and two states have passed laws and they intend to apply those laws for their citizens. The two states are Montana and Tennessee.

It was expected that at some point these laws would be challenged and it appears actions to do such has begun. The Federal Bureau of Alcohol, Tobacco, Firearms and Explosives has published open letters to federal firearms license holders in  Montana and  Tennessee explaining that federal law trumps state law when it comes to gun laws.

“As you may know, federal law requires a license to engage in the business of manufacturing firearms or ammunition, or to deal in firearms, even if the firearms or ammunition remain with the same state. All firearms manufactured by a licensee must be properly marked. Additionally, each licensee must record the type, model, caliber or gauge, and serial number of each firearm manufactured or otherwise acquired, and the date such manufacture or other acquisition was made. Firearms transaction records and NICS background checks must be conducted prior to disposition of firearms to unlicensed persons. These, as well as other Federal requirements and prohibitions, apply whether or not the firearms or ammunition have crossed state lines.

In a report filed by CBS News, it seems to indicate that even though these states are claiming sovereignty under the Tenth Amendment, the Federal Government may have power over such gun laws as the Firearms Freedom Act, via the Commerce Clause.

Read literally, the Tenth Amendment seems to suggest that the federal government’s powers are limited only to what it has been “delegated,” and the U.S. Supreme Court in 1918 confirmed that the amendment “carefully reserved” some authority “to the states.” That view is echoed by statements made at the time the Constitution was adopted; New Hampshire explicitly said that states kept “all powers not expressly and particularly delegated” to the federal government.

More recently, federal courts have interpreted the Tenth Amendment narrowly, in a way that justifies almost any law on grounds that it intends to regulate interstate commerce.

World Net Daily points out in an article of their own that the Montana Firearms Freedom Act bill declares that Congress has not “expressly pre-empted state regulation of intrastate commerce pertaining to the manufacture on an intrastate basis of firearms, firearms accessories, and ammunition”.

I have been saying for some time that all of this will eventually wend its way through the courts ultimately landing at the feet of the United States Supreme Court. This is one reason the approval of Sonia Sotomayor as a Supreme Court justice is vitally important, especially due to the fact that she is anti Second Amendment and has shown little regard for the original intent of the Constitution.

Also at issue in this debate are pending lawsuits challenging gun laws in other states. Chicago’s gun ban is being challenged after the District of Columbia vs. Heller decision reaffirming an individual right to keep and bear arms. The Seventh Circuit Court of Appeals has ruled that federal gun laws do not pertain to the states, a position taken by Sotomayor.

This is an interesting ruling considering that prior to this the Ninth Circuit Court ruled that the Fourteenth Amendment’s Due Process Clause incorporates the Second Amendment and therefore federal law, which now holds the ruling of theDistrict of Columbia vs. Heller decision, applies to the states rendering them unable to create gun laws that supersede federal laws. This will end up at the Supreme Court.

While we are discussing the Fourteenth Amendment, the Second Amendment and Ninth and Tenth, the BATFE is sending out public letters, assumed to be authorized by the Obama administration, to federal firearms dealers in Montana and Tennessee, stating that federal law supersedes state laws, at least as they pertain to firearms and ammunition.

Where will this all end up? I believe the Supreme Court but I know not how long this may take. In the meantime, the Obama administration, made up of mostly anti-gun people, are grasping to gain control over your right to keep and bear arms. From the day Obama was elected, the people rushed to stores buying up guns and ammunition at unprecedented rates. With the combination of a new president and staff known to want to ban gun and gun sales and the District of Columbia vs. Heller ruling, it has helped spur more laws to relax gun restrictions. This, I am positive, angers the Obama administration.

None of this comes as a surprise to Gary Marbut, President of the Montana Shooting Sports Association. Marbut was directly responsible for the Montana Firearms Freedom Act. In a letter sent to his members of MSSA, Marbut points out what he views as little concern over the letter and how it was expected.

1) The letters are addressed only to FFLs and purport to assert authority only over those licensees already under the federal thumb because of their licenses. We’ve always assumed that people with existing FFLs would not be players in the state-made guns exercise because they will not wish to risk thwarting the earned reputation the BATFE has for vindictiveness. The letters are not addressed to non-FFLs, those folks who are potential participants in the state-made guns business.

2) The BATFE letters may lack any official import because they are not signed by the official who appears in the signature block, but by some unknown other person. It’s difficult to place much credence in a missive upon which the purported issuing person is unwilling to put his signature, and for which the signer is unknown.

3) The essence of the letter is a declaration that the laws that the BATFE enforces supercede the U.S. Constitution and the Tenth

Amendment. I understand that the BATFE hopes that is so, but that’s far from proven yet. (We still recommend that nobody make these state-made guns until we can litigate and vet the principles involved.)

4) The letters, if they are official even though unsigned by the issuer, will help us establish standing to get this issue squarely before the federal courts. The feds have thrown down the gauntlet.

I like Montana’s approach to their action in the creation of their Firearms Freedom Act. They are proactively seeking to bring this issue to the courts for a ruling. They believe in their own state’s constitution and that they, according to their contract with the people and the United States Government, have the sovereignty and freedom under the U.S. Constitution, to make their own laws in matters such as this.

This will be a long and drawn out affair but one that is ripe for a good battle. Let’s hope this battle arrives before Obama can stack the Supreme Court with more anti-gun “empathetic” justices.