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RIGHTS vs. PERMISSIONS: GUNS
Fiedor Report On the News #328 ^ | 12-5-04 | Doug Fiedor

Posted on 12/04/2004 12:07:30 PM PST by forest

Here's a quick question for all you Constitutional scholars: Which of the enumerated powers authorized to the federal government are described in the Bill of Rights? None, of course. Except in later amendments, regulatory powers given the federal government by the Constitution of the United States are listed in the body of the Constitution. The Second Amendment, then, is something else.

When we are unsure about the exact meaning of a section of the Constitution, the Supreme Court instructs that we should look to The Federalist Papers for clarification. In Cohens v. Virginia the Court said: "Its intrinsic merit entitles it to this high rank [as a complete commentary on the Constitution], and the part its authors performed in framing the Constitution put it very much in their power to explain the views with which it was framed." Since then, the Federalist Papers have been quoted frequently as an authority in many Court opinions.

In The Federalist #84, Alexander Hamilton argues on why a Bill of Rights was not really needed:

"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? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?"

Indeed. Why declare that things shall not be done which there is no power to do? And, there is no power to regulate private firearms.

Yet, many people wanted this declaration of rights added to the Constitution. The promise to do so was made so as to get the Constitution ratified. And the rest is history.

It is also enlightening to read what the Representative from Virginia, James Madison, said to the first House of Representatives as he proposed the Bill of Rights. Here is part of that speech:

"It has been said, by way of objection to a bill of rights, by many respectable gentlemen out of doors, and I find opposition on the same principles likely to be made by gentlemen on this floor, that they are unnecessary articles of a Republican Government, upon the presumption that the people have those rights in their own hands, and that is the proper place for them to rest. It would be a sufficient answer to say, that this objection lies against such provisions under the State Governments, as well as under the General Government; and there are, I believe, but few gentlemen who are inclined to push their theory so far as to say that a declaration of rights in those cases is either ineffectual or improper. It has been said, that in the Federal Government they are unnecessary, because the powers are enumerated, and it follows, that all that are not granted by the constitution are retained; that the constitution is a bill of powers, the great residuum being the rights of the people; and, therefore, a bill of rights cannot be so necessary as if the residuum was thrown into the hands of the Government."

Got that? "The people have those rights in their own hands, and that is the proper place for them to rest." Later, he says that, "all [powers] that are not granted by the constitution are retained" by the people.

If the federal government had the power to regulate personal firearms, it would be one of the powers listed in the body of the Constitution, not in the Bill of Rights. And, since there is no such power granted, the right to keep and bear arms completely and unequivocally belongs to the people. Personal arms may, however, be regulated by State government.

The Second Amendment, then, is no more than a declaration that the people already have the right to keep and bear arms.

So, what would the Founding Fathers say about the abuse of power by the federal government to grab guns? Alexander Hamilton gives us a pretty good idea in The Federalist No. 78:

"There is no position which depends on clearer principles than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid."

One other little point: State governments gave up a few powers when the central government was formed. But, the American people did not give up any of their rights. Were the people asked to sacrifice liberty, the Constitution would never have been ratified.

 

 END


TOPICS: Constitution/Conservatism; Culture/Society; Editorial; Government; Philosophy; Politics/Elections
KEYWORDS: amendments; authorize; bang; banglist; cohens; contrary; dangerous; enumerated; federalist; guns; opinions; powers; presumption; ratified; regulatory; residuum; retained; rights; tenor
Except in later amendments, regulatory powers given the federal government by the US Constitution are listed in the body of the Constitution. The Second Amendment, then, is something else.

For exact meaning of the Constitution, the Supreme Court says to look to The Federalist Papers.

Fed Pap 84: Bills of rights could be dangerous. No need to restrain when no power is given.

Madison: The Constitution enumerates the powers of the fed gov. The residuum is retained by the people.

Government is NOT granted the power to regulate guns.

The Second Amendment is no more than a declaration that the people already have the right to keep and bear arms.

Fed 78: No legislative act contrary to the Constitution can be valid.

One other little point: State governments gave up a few powers when the central government was formed. But, the American people did not give up any of their rights. Were the people asked to sacrifice liberty, the Constitution would never have been ratified.

1 posted on 12/04/2004 12:07:31 PM PST by forest
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To: forest

bump


2 posted on 12/04/2004 12:17:34 PM PST by blackeagle
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To: forest

Unfortunately Original Intent doesn't mean very much to the Souters and Ginsbergs of the Court.


3 posted on 12/04/2004 12:18:10 PM PST by Aetius
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To: Aetius
Unfortunately Original Intent doesn't mean very much to the Souters and Ginsbergs of the Court.

Which is why the left is so terrified of the prospect of 2-4 more Clarence Thomas on the court.

If the Constitution were to be enforced, 2/3 of the federal government would be unconstitutional, and 1/2 of the states, through the 14th amendment.

4 posted on 12/04/2004 12:32:52 PM PST by marktwain
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To: forest
Text of the Second Amendment
"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."


Anyone who actually reads AND understands the 2nd Amendment will see that there is no need or authority for any type of gun registration and there is no need for anyone to have to apply for a license to carry a gun.
Any political party, politician, judge (etc), organization or individual who trys to convince you that:
1) you must register a firearm
2) you must pass a background check
3) you must wait (x) amount of days before you can get your firearm
4) you need to have a license to carry a gun
is either uneducated about OUR rights as citizens
OR is actively working to undermine OUR country.

How Did the Founders Understand the Second Amendment?

CONGRESS in 1866, 1941 and 1986 REAFFIRMS THE SECOND AMENDMENT
The Bill of Rights, including the Second Amendment right to keep and bear firearms,
originated in the United States Congress in 1789 before being ratified by the States.
On three occasions since then--in 1866, 1941, and 1986--
Congress enacted statutes to reaffirm this guarantee of personal freedom
and to adopt specific safeguards to enforce it.


ON THE DAY BEFORE Thanksgiving 1993,
the 103d US Congress brought forth a constitutional turkey.
The 103d Congress decided that the Second Amendment did not mean what it said
("...shall not be infringed") and passed the Brady bill.

How the Brady Bill Passed (and subsequently - "Instant Check")
When the Brady Bill was passed into law on November 24, 1993,
the Senate voted on the Conference Report
and passed the Brady Bill by UNANIMOUS CONSENT.



5 posted on 12/04/2004 1:19:38 PM PST by 68-69TonkinGulfYachtClub (Want better gun control? Try eating more carrots.)
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To: forest
But, the American people did not give up any of their rights. Were the people asked to sacrifice liberty, the Constitution would never have been ratified.

"Individuals entering into society, must give up a share of liberty to preserve the rest." (From the Letter of the President of the Federal Convention, Dated September 17, 1787, to the President of Congress, Transmitting the Constitution.)

6 posted on 12/04/2004 5:02:15 PM PST by KrisKrinkle
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To: KrisKrinkle

"must give up a share of liberty "

What did Ben Franklin say about those who would give up liberty to gain a little safety?


7 posted on 12/04/2004 5:25:10 PM PST by Old Student (WRM, MSgt, USAF (Ret.))
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To: Old Student

"What did Ben Franklin say about those who would give up liberty to gain a little safety?"

He said that they deserve neither.

Do you suppose he meant to include those who enter the military? Such people give up a certain amount of liberty and gain safety, both for themselves and their country. After all, it's safer for the longevity of the country and of the individual to combat a foe as part of an organized group providing mutual support (in a military sense) rather than as disorganized individuals none of whom will sacrifice a bit of liberty for the safe accomplishment of their goals.

Of course he didn't. His words were likely meant as a guide and a caution, not as a hard and fast rule. Most people give up some degree of liberty in pursuit of what they view as a greater good (have you never been married?).

The difficult questions regard things like boundaries and criteria, benefits weighed against costs and risks, and the definition of a greater good.


8 posted on 12/04/2004 7:09:08 PM PST by KrisKrinkle
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To: KrisKrinkle
"Do you suppose he meant to include those who enter the military?"

I do not suppose that at all. I have given up liberties, but to no guarantee of safety, quite the opposite. I have given up liberties to the negation of my own safety.

The moral crux of the issue is that I hold the positive benefit for individual freedom to be of enough value to place myself in harms way to protect that freedom and the country that holds it dear.

There is no safety in combat. Men(Women) trained and bringing war expect none, but live with the notion that together we may be a force for protection of that good that we hold sacred.

We choose to give up liberty and safety in order to sustain both for our families, friends, and country.
9 posted on 12/04/2004 11:46:42 PM PST by pop-aye (For every journey, there is a higher path.)
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To: KrisKrinkle

"Do you suppose he meant to include those who enter the military? "

No, I think not. Those who join the military do not give up liberties, in fact. They merely agree to forego exercise of some of them for a limited time, for the greater good of the Nation.

"(have you never been married?)." Yes, twice. I did not think of it as giving up liberties either time.

"The difficult questions regard things like boundaries and criteria, benefits weighed against costs and risks, and the definition of a greater good."

Indeed.


10 posted on 12/05/2004 8:09:28 AM PST by Old Student (WRM, MSgt, USAF (Ret.))
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To: marktwain

"Which is why the left is so terrified of the prospect of 2-4 more Clarence Thomas on the court"

God willing.


11 posted on 12/05/2004 1:23:34 PM PST by SASsySIGster ("happiness is a Belt Fed Weapon")
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