Put On Your Thinking Caps (You’ll Need Them For This One)

Be forewarned, this one’s a whopper…

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In 1791, James Wilson, one of the few men who was present for both the writing of the Declaration of Independence and the Constitution wrote something entitled Lectures on Law. In that work he states, “Government, in my humble opinion, should be formed to secure and enlarge the exercise of the natural rights of its members; and every government which has not this in view as its principal object is not a government of the legitimate kind.”

Wilson does not specify the federal government; he simply says government. He could be talking about the federal government, or he could just as well be talking about the mayor of a town of 200 people. When Wilson speaks of government he speaks of any entity that creates laws that the people must adhere to. Therefore it is safe to assume that when you speak of government it should immediately come to mind that the purpose for which it exists should be to secure or protect our Natural Rights.

What are Natural Rights? Glad you asked. Natural Rights are, basically, those rights we have simply because we are human beings; they are as much a part of our being as our DNA. In 1772, four years before the Colonies would declare independence from Britain, Samuel Adams wrote the following, “Among the Natural Rights of the Colonists are these First. a Right to Life; Secondly to Liberty; thirdly to Property; together with the Right to support and defend them in the best manner they can–Those are evident Branches of, rather than deductions from the Duty of Self Preservation, commonly called the first Law of Nature.”

Self Preservation, or self defense as we call it today, is not limited to the protection of one’s life; it also covers our right to protect our belongings, and yes, even our liberty. And what is liberty if it is not the ability to fully exercise our rights?

If the people of this country were able to get past their emotional response to the subject of gun control they would be able to understand one simple point; any law passed by government which violates any of our rights is unconstitutional and need not be obeyed. This fact is reinforced by the 16th American Jurisprudence, Second Edition, “The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it. No one is bound to obey an unconstitutional law, and no courts are bound to enforce it.”

If you cannot understand the nature of government, and the relationship between it and those who created it, then you will never understand why any law which restricts gun ownership is unconstitutional and need not be obeyed.

The first people to be truly considered Americans were here long before our system of government was established. They were subjects under a sovereign King and when they obtained their independence from said King all sovereignty and authority was immediately restored to the people, “…at the Revolution, the sovereignty devolved on the people; and they are truly the sovereigns of the country, but they are sovereigns without subjects…with none to govern but themselves…” (Chisholm v. Georgia, 1793)

For any system of government to come into existence it had to happen because the people, as sovereigns, came together and established it. Each Colony, or State, wrote constitutions, granting government certain powers to enact laws on behalf of all the people within the respective States.
Far too many today view constitutions as paper relics from the past, things to be gazed upon in museums and on the internet, but not paid any real attention to. This is a mistake; constitutions are real, and the power they held at the day they were first written still exist today; unless properly amended by the procedures set forth within them.

Thomas Paine explains it thusly, “A constitution is not a thing in name only, but in fact. It has not an ideal, but a real existence; and wherever it cannot be produced in a visible form, there is none. A constitution is a thing antecedent to a government, and a government is only the creature of a constitution. The constitution of a country is not the act of its government, but of the people constituting its government. It is the body of elements, to which you can refer, and quote article by article; and which contains the principles on which the government shall be established, the manner in which it shall be organised, the powers it shall have, the mode of elections, the duration of Parliaments, or by what other name such bodies may be called; the powers which the executive part of the government shall have; and in fine, everything that relates to the complete organisation of a civil government, and the principles on which it shall act, and by which it shall be bound. A constitution, therefore, is to a government what the laws made afterwards by that government are to a court of judicature. The court of judicature does not make the laws, neither can it alter them; it only acts in conformity to the laws made: and the government is in like manner governed by the constitution.”

For us to proceed, that concept must be fully understood.

In 1787, James Madison and a few others had this idea to create a strong central government whose laws would become binding upon the nation as a whole. They did so because they claimed commerce was suffering and that our nation’s ability raise an army to defend itself from foreign attack was lacking.

Before we continue, let me ask you to ask yourselves something. If the States already had systems of government to manage the affairs of the States and pass laws which affected the people, than to whom would the laws passed by this central government apply?

The purpose, therefore, of this central government was to manage the interaction between the States, not to pass laws which were directly aimed at the people within the States. When arguing in support of the proposed Constitution, James Madison wrote the following to the people of New York under the pseudonym Publius, “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.

The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security.” (Federalist 45)

As the people already had systems of governments in place to enact laws which directly affected them there was no need for them to create a centralized system of government. Therefore it must be concluded that any centralized government would be created by the States coming together to create one to manage how they interacted with each other.

This begs the question; “Why does the Preamble of the Constitution state, We the People…?” I could go on and discuss the difference between a federal form of government and a national one, but that would be straying too far off topic. The point is that for any central government to exist it had to be given its power by the States. Since the people had already ceded a certain amount of authority to their State governments, the States could not give any central government more power than they themselves had been given.

This is supported by Locke’s Second Treatise, a book that greatly influenced the thinking of many of our Founders. In Chapter 11, Section 135, Locke states, “Though the legislative, whether placed in one or more, whether it be always in being, or only by intervals, though it be the supreme power in every common-wealth; yet, First, It is not, nor can possibly be absolutely arbitrary over the lives and fortunes of the people: for it being but the joint power of every member of the society given up to that person, or assembly, which is legislator; it can be no more than those persons had in a state of nature before they entered into society, and gave up to the community: for no body can transfer to another more power than he has in himself…” (My emphasis)

Therefore, if a central government was created by the States it could only have the power the States surrendered to it; nothing more. And, if in fact, the central government was to be created directly by the people, it could have no more power over the lives and liberty of anyone than that held by a single individual against the whole of society. If a single individual could not deprive anyone else of their life, their property, and their liberty, then no system of government created by men could legitimately have that power; and if they did they would be considered unjust; or tyrannical.

All that I have said up to this point is the precursor to the following statement: Any law which restricts my ability to own the gun of my choosing, or limits when or where I can carry one for my defense is unconstitutional.

And if you’ll bear with me I can prove it.

First of all we must ask; what is our Constitution? Is it merely an outline for a system of government, or is it more? During the ratification of the Constitution there were those that read, and reread it; dissecting each Article, each Clause, to see if it might be either beneficial or detrimental to the rights of the people and the States. They did this because of what Article 6 states, “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 the Authority of the United States, shall be the supreme Law of the Land…”

Therefore, first and foremost we must recognize that the Constitution is not simply a list of suggestions as to how our system of government should function; it is a law. And when someone breaks a law by what name do we call them? Why, criminals of course. So, if our government disobeys the law which limits their ability to enact laws upon a certain subject, then their acts become criminal and they should be the ones going to jail, not those who their unconstitutional laws are directed towards.

But there’s more…

Article 4 of the Constitution states, “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” Although rights are not the same as privileges, can you for a moment believe that our Founders felt that those living in one State should enjoy the same privileges as those in another State, then the same would not apply towards the exercise of their Natural Rights?

As we have already proven; the Constitution is a law and this was upheld in 1866 by the Supreme Court in Ex parte Milligan, “The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of men than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism.”

Even though I myself have begun to have serious doubts as to the wisdom of accepting the government created by the Constitution, those who wrote it were not stupid men. They understood that times change and that this system of government must have a means to change with the times. That is why the included Article 5 of the Constitution which covers the process by which it may be amended. Article 5 states, “The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States.” (My emphasis)

So any amendment once ratified by the Legislatures of three fourths of the States become part of the Constitution, which is if you recall, a law. Then those amendments become not only laws which apply to the federal government, but become part of the Supreme Law of the Land; applying both to the federal government and the State governments.

Which leads us to the Second Amendment, which 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.” What the Second Amendment states is that our right to keep and bear arms AND our right to have militias shall not be infringed; not that one is reliant upon membership in the other.

There are no limiting clauses within the Second Amendment which state what type arms we may keep and bear, or when we can be permitted to bear them; it simply states that those rights shall not be infringed. This amendment is binding both upon our federal government and the State governments; being part and parcel of the Supreme Law of the Land.

If you recall, Locke stated that no man may delegate more power than he himself has. How is it then that the people can create bodies such as government, and then bestow them with the power to create laws that say what type arms the people may keep, and require permits for them to bear them? How is it that these same arms which the government restricts the private citizen from owning are typical for agents working for government such as law enforcement and the military?

If you were to think about the reasons behind the inclusion of the Second Amendment in the Bill of Rights; the ability of the people to resist tyranny, then it would only make sense that the people be equally as armed as those they might one day find the need to bear those arms against.
Don’t believe me? Well listen to what Joseph Story said about the purpose and intent of the Second Amendment, “The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers…”

In 1859 the Texas Court of Appeals ruled, “The right of a citizen to bear arms, in lawful defense of himself or the State, is absolute. He does not derive it from the State government. It is one of the “high powers” delegated directly to the citizen, and `is excepted out of the general powers of government.’ A law cannot be passed to infringe upon or impair it, because it is above the law, and independent of the lawmaking power.”

If a law cannot be passed to infringe or impair it, how can a law be passed which decides what is meant by the word ‘arms’? How also can they require us to obtain a permit to exercise this right? In People vs Zerillo, the court ruled, “The provision in the Constitution granting the right to all persons to bear arms is a limitation upon the power of the Legislature to enact any law to the contrary. The exercise of a right guaranteed by the Constitution cannot be made subject to the will of the sheriff.”

In Bliss vs Commonwealth, the court ruled, “For, in principle, there is no difference between a law prohibiting the wearing of concealed arms, and a law forbidding the wearing such as are exposed; and if the former be unconstitutional, the latter must be so likewise. But it should not be forgotten, that it is not only a part of the right that is secured by the constitution; it is the right entire and complete, as it existed at the adoption of the constitution; and if any portion of that right be impaired, immaterial how small the part may be, and immaterial the order of time at which it be done, it is equally forbidden by the constitution.”

In Wilson v State the court ruled, “To prohibit a citizen from wearing or carrying a war arm . . . is an unwarranted restriction upon the constitutional right to keep and bear arms. If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of constitutional privilege.”

Are you starting to get the picture yet?

How then can you explain the differences between the ability of people to exercise what is a right between the people of one State versus those of another State? How is it that the people who reside in the State of Nevada, or Colorado, or Texas, or a whole slew of other States are allowed to own firearms which are prohibited in California? How is it that the people of some States may own arms that allow for 10 or more rounds in the magazine when California limits me to 8 for a pistol?

Although I do not accept that the 14th Amendment was duly ratified; my belief it was forced upon the Southern States as a condition of their re-admittance to the Union. Nonetheless most believe it to be part of the Constitution and therefore binding.

Does not the 14th Amendment state, “…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.”

Equal protection of the laws it says? Does that not mean that the law applies as equally to those in California as it does to those living in any of the other 49 States? How then can California justify its restrictive gun laws? How can Chicago, or even our nation’s capital, the supposed bastion of liberty; Washington D.C. pass any law which infringes upon the right to keep and bear arms without being considered criminal in their actions?

The only reason these laws have any force is because the people do not understand the reason why the Second Amendment was so vital to the preservation of all our other rights, and because they acquiesce to them when passed. They not only acquiesce, they openly beseech government to enact stricter laws prohibiting the ownership of guns; a concept I find absolutely mind boggling if you consider the ramifications of an unarmed society.

Yet law enforcement and the judicial system routinely prosecute people who choose to exercise their right in opposition to the laws passed by government to restrict them. If it truly is a right which is protected by law, then who are the law-breakers in such scenarios; the person who exercises their right or those who punish them for it?

The Bill of Rights in its entirety is beyond the ability of lawmakers, and this goes for State as well as federal, to violate. In 1943 Supreme Court Justice Robert H. Jackson ruled, “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” (West Virginia Board of Education vs. Barnette)

I find it a sad commentary on the public’s understanding of the Second Amendment that they would respond to the abuse of a right by one individual by the restriction of that right for all those who have never abused it. I also find it a sad commentary on the public that they show more concern for the rights of those who break the law and attempt to deprive one of their life or property than they do the rights of those who defend these things.

I don’t always agree with everything Ted Nugent says, but in his comments regarding the Second Amendment he said something I wholeheartedly agree with, “I don’t like repeat offenders-I like dead offenders.” After all, Sam Adams did say that we have the right to protect our life, our liberty and our property in the BEST manner we can. If you ask me, the best manner is to make those who attempt to deprive us of those things pay the ultimate price.

I think I have proven beyond a doubt, as the courtrooms across the land require for a conviction, that our right to keep and bear arms is absolute; that it cannot be infringed by any lawmaking body, nor can that right be punished by those in the judicial system.

In 1967 Justice Potter Stewart ruled, “The right to defy an unconstitutional statute is basic in our scheme. Even when an ordinance requires a permit to make a speech, to deliver a sermon, to picket, to parade, or to assemble, it need not be honored when it’s invalid on its face.” (Walker v Birmingham)

I’ve had just about enough of people’s knee jerk reactions to someone using a firearm to commit horrendous crimes. Punish those who abuse their rights but leave my rights alone! If you do not like guns, fine, don’t buy one. I don’t like rap music, but I don’t ask that it be banned; I simply don’t buy it or listen to it. I will not restrict the right of people to produce it, or listen to it. If you would show me the same respect for my right to keep and bear arms we wouldn’t be having this discussion.

Well, I think I’ve rambled on long enough. I’ll be lucky if half of what I have said sinks in. I suppose I should let you get back to the things you find important; and obviously the preservation of your liberty isn’t on that list.

About Br'er Rabbit

I'm just one person out of millions of others. The only thing different about me is that I don't walk around with my head up my ass.
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