It has been well said, "It cannot be presumed that any clause in the Constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it." Marbury v Madison, 5 U.S. 137,174 (1803). Let it be so of the Preamble, as of Congress' power to regulate Commerce among the several States.
We The People of the United States, in order to
Of these 6 stated purposes, none is expendable. Acts carried out under this Constitution, by the federal government or any state constituted thereunder, must not break any of these principal principles: to exalt one at the expense of any other breaks them all. The absurd may assert that only the federal government must observe this preamble, and that the states are free to do as they please. These preachers of absurdity may also require of parents to be disciplined, and tolerate riot from their children. Worthy of note is that Law is not supreme, rather, Justice is the objective and law is a method to achieve it. Therefore, where law and justice collide, law must yield. Also worthy of note is that if the Blessings of Liberty are compromised, the purpose of Justice has also been compromised. If this breach against the blessings of Liberty occurs because of a law, the law was the transgressor, not the people who contemned it. The statute at bar renders the Blessings of Liberty less secure by disarming us, reducing our ability to resist crime or tyranny, casting stigma upon skill in arms, and increasing the points under which the power of the state may come against us who have committed no crime but to move to New York with our handguns.
This statute is in contrast with the preamble, acts to frustrate the preamble, and is generally repugnant to the preamble. It is unconstitutional.
Art 1 § 8: "The Congress shall have power..."
11: "To declare War, grant Letters of Marque and Reprisal, and make rules concerning Captures on Land and Water;"
A Letter of Marque is wherewith a citizen of the United States, and not a soldier of the Army or sailor of the Navy thereof, may sail forth with an armed ship, and engage shipping of the nation named in the Letter of Marque, whether to sink or to capture; to engage warships of that nation as another warship; and in general to make reprisal against a foreign power, as if at war, up to the limits Congress shall set in the general rules concerning Captures and the specific Letter of Marque and Reprisal in hand.
Obviously, a Letter of Marque is useless without a warship.
There is no Constitutional limit to the size or power of the warship a citizen may own with which to carry out the powers of a Letter of Marque. Congress was given no power to set any such limits. Thus, considering the Constitution only, Mr. Bill Gates may own a fully functional 55,000 ton Iowa class Battleship and fly the Microsoft flag on it's masthead. Letter of Marque and Reprisal, Mr. Gates could render software piracy a high-risk occupation, no? New York's law about citizen ownership of handguns mirrors the Constitution's law about New York ownership of warships, but the Constitution allows Citizens that they may own warships and armaments of any degree without permission of any degree. --> Meanwhile, absent Consent from Congress, New York may not own as much as a small gunboat, for Art 10 ¶ 3 prohibits it ("No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace,..."). Such consent may be revoked as easily as granted.
Warship internal security personnel and Officers carry handguns for sidearms. For New York to forbid handguns while neither New York nor the United States can prohibit private possession of an armed warship is akin to acknowledging that one may raise and train herds of elephants freely, but threaten a year in jail and a $1000 fine for keeping a mouse.
This statute obstructs the capacity of the people to carry into effect a letter of Marque and Reprisal, (which Letter requires that our keeping and bearing of arms be an individual right, and that said right include handguns), reducing the effect of the Power of Congress to grant such Letters, and is therefore unconstitutional.
Art 1 § 8: "The Congress shall have power..."
15: "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections, and repel Invasions;
16: "To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress."
Whereas (as has been shown above) Militia means the whole body of the people, an armed Citizenry, without regard or requirement of past or current enrollment in any formal or official organization, state sanctioned or otherwise, therefore, these clauses put into the hands of Congress power to provide for arming the whole body of the common people.
In Maxwell v. Dow (176 US 581) the majority opinion cites Presser v. Illinois saying
It was therein said, however, that as all citizens capable of bearing arms constitute the reserved militiary force of the National Government, the States could not prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the General Government.
Defendants observe that this doesn't name the Second Amendment, but declares the meaning thereof: States have no power over our guns.
This is no philosophical polemic, rather, the power of state legislation over what weapons we may own (which none of the states presumed it had, regarding its free citizens, at the time of the ratification of the Constitution of the United States) is, by these clauses, surrendered by each of the states to the Congress. It appears that no power to obstruct armament of the people, by the Congress or by the people themselves, is left to the states. This section therefore invalidates EVERY state statute putting a criminal penalty on the ownership, by any of the people, of any of the "terrible implement of the soldier". Congress may provide for arming the Militia, but not even Congress has power given to it to disarm the Militia.
Naturalization Laws requiring a willingness to bear arms are upheld in these words United States v. Schwimmer, 279 U.S. 644 (1929):
5. That it is the duty of citizens by force of arms to defend our Government against all enemies whenever necessity arises, is a fundamental principle of the Constitution. P. 650.We think it obvious that ignorance of arms and destitution of skill in arms "tends to lessen the willingness of citizens to discharge their duty to bear arms", ergo laws that intimidate us from possession of or practice with handguns accomplish precisely this unconstitutional objective.6. Whatever tends to lessen the willingness of citizens to discharge their duty to bear arms in the country's defense detracts from the strength and safety of the Government.
Whereas disarmament of the Militia by the state would render the power of Congress to define the method of organizing them, arming them, training them, or calling them forth, nugatory, therefore the state has no authority to disarm the the people. "[T]he state has [no power to] invade the exclusive field of national governmental powers;" Steward Machine Co. v. Collector of Internal Revenue, 301 U.S. 548, 611 (1937).
New York's statute is unconstitutional as an invasion of Congressional prerogative to provide for arming the people.
"The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;"
We think it obviously pretty silly to call us out "to execute the Laws of the Union, suppress Insurrections, and repel Invasions" (Art 1 § 8 cl 15) if our States have disarmed us. This is a dead giveaway that our States cannot disarm us. In Cities such as Washington, D.C., New York City, and Chicago, the President, attempting to exercise this power, could do little more than convene a parade. This section indicates that the Laws of Congress should provide for our obtaining ownership and possession of the latest generation and best quality Police and Military equipment and the corresponding training, so that burglars, drug runners, murderers, and violent gangs fought not a professional police of a few thousand in the largest cities, but the whole population of a few millions. They in uniform are Police Officers. We, who would gladly leave our desks and machines upon a call to arms, would be Police Infantry. Thus would we put down the contempt the predators have for us.
As the States have no power to frustrate the prerogatives and powers of the President, this statute is unconstitutional as undermining the power of the Presidency of the United 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."
The 27 words appear in two clauses of 13 and 14 words, respectively.
In greater detail:
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A |
'A' indicates we are talking in the abstract. 'The well regulated...' or 'Our well regulated...' would have referenced existing organizations. This declaration addresses the general case, and in the abstract, about militia in general. |
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well regulated |
Today's meaning, strangled with red tape and felony statutes, and hamstrung with overseers wherever not flatly prohibited, did not apply to anything on this continent in the 1790's. 'Regulated' meant a clock that kept time, a keyboard instrument that played the same as others of it's type, finances and accounting put in good order, or a militia that could function on it's own: drill, march, bivouac, engage and destroy an enemy, take casualties and stay in the fight, without dependence on overseers and controllers. |
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militia |
Common usages: 1990's: Hired & paid internal security troops e.g. National Guard; or paranoiac gangs of the right-wing-lunatic-fringe-gun-nut flavor; 1790's: The whole citizenry, armed, trained, and equipped. Excluding the numerically insignificant 'fringies', Militia, today, is a state-owned, state-operated, state-equipped group of state-selected, state-paid people, with loyalty first to the state. Thus today it is nonsensical to refer to a militia acting against the state, but in the Framers time, the militia, arising from the people, being the whole people, having it's loyalty first to the people, was in fact expected to act against the state, should the state act against the freedom and peace of the people. That's what the militia did in opening fire on their own King's police troopers. The doctrine of a readiness to rebel against tyranny is part and parcel of our being governed by our consent. |
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being necessary to the security of a free state |
This is the twist of grammar that shows this clause to be a statement of understanding, a declaration of belief, and not a commandment or restraint. It does declare, we should note, that a state without a militia, or, a state without an armed, trained, equipped citizenry, is here not considered a free state, or is a state whose free state is not secure. It bears belaboring at this point that a state can be secure with it's neighbors and subjects/citizens held in check. This requires an army and police, respectively. The security of a free state requires that the government also be restrained. The Constitutional plan was that the armed citizens were part of the system of checks and balances to this end. |
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the right |
This is not a privilege subject to licensure, it is a right. As it is a right, then all laws making a crime of the peaceable exercising that right are invasions, by the law-making body, against the right. In the Framer's times, Rights were a gift or endowment from that God whose existence was not questioned (however much the details of doctrine and worship were ample food for contentions). Thus, in the Framers view, Rights could no more be made subject to legislative prohibitions than God himself could be made outlaw. Oppression of rights by a State make that State outlaw. States could arise, change, fall, merge or divide, but Rights were discovered, not made. From this confluence of Right and God in the minds and intentions of the authors of the Constitution and the Bill of Rights, any encroachment by law, executive order, department policy, or judgment, against a Right, was as wrong as robbery or murder. Governments with a stubborn streak about destroying the enjoyability of rights, merited annihilation, unless they repent of their ambitions, upon the petitions of the people. Defendants do not seek to cram any religion down anybodies throat, this shows how seriously the word right, where used in the Constitution or Bill of Rights, should be taken. |
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of the people |
Who are the people? Everybody with residence in, and affection for, their community, county, state, and the United States. U.S. vs Verdugo-Urquidez 494 U.S. at 265 (1990, emphasis added). Contrary to the suggestion of amici curiae that the Framers used this phrase "simply to avoid awkward rhetorical redundancy"...the term "the people" seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by "the People of the United States". The Second Amendment protects "the right of the people to keep and bear arms," and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to "the people." See also U.S. Const., Amdt . 1, ("Congress shall make no law ... abridging ... the right of the people peaceably to assemble"); Art I, Sec 2, cl. 1 ("The House of Representatives shall be composed of Members chosen every second Year by the People of the several States"). While this textual exegesis is by no means conclusive, it suggests that "the people" protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. See United States ex rel. Turner v. Williams, 194 U.S. 279, 292 (1904). Justice William Brennan, in his dissenting opinion in U.S. vs Verdugo-Urquidez (494 U.S. at 287, 110 S.Ct. at 1072), wrote that: [T]he term "the people" is better understood as a rhetorical counterpoint to "the government," such that rights that were reserved to "the people" were to protect all those subject to "the government." Note, his dissent states the 4th Amendment should apply to Sr. Verdugo-Urquidez, as he is not the government, without disputation to the point asserted here by Defendants (and raised by the majority of the Court) that "the right of the people to keep and bear arms" addresses individuals, not organizations, state sanctioned or otherwise. |
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to keep and bear arms |
Note that this is not limited to firearms, nor rifles & shotguns, but includes any battle-quality militiary killing tool. Reference the "Letters of Marque and Reprisal" above, and the words of Tench Coxe from the Ratification Debates: "The power of the sword, says the minority of Pennsylvania, is in the hands of Congress. My friends and countrymen, it is not so, for the powers of the sword are in the hands of the yeomanry of america. The militia of these free commonwealths, entitled and accustomed to their arms, when compared to any possible army, must be tremendous and irresistible. Who are the militia? are they not ourselves. Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American. The 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." (Pennsylvania Gazette, 20 Feb 1788). Note also, that the scope of what we reserved out of the Police powers of the Government is not only to keep arms, but to bear them as well. |
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shall not be infringed. |
From Webster's New World Dictionary, third College Edition: Infringe vt. Break, break off, impair, violate; fail to observe the terms of; trespassed against. Thus, we own a Right Patent to arms, to use a term of Heraldry. The right shall not be encumbered, made empty or without effect. This is a prohibition on prohibitions on ownership or carrying of knives, swords, handgonnes, handguns, rifles, shotguns, assault rifles & assault weapons, machine guns, etc. If the device be useful to troops, or warships, against enemy troops or warships, it's our birth right. Please note this amendment ends with a period, not a comma. It is not a midpoint of a discussion, but the closure thereof. |
"Let us now consider whether we may not be able to defend ourselves by well-regulated militias against any foreign force, though never so formidable: that these nations may be free from the fears of invasion from abroad, as well as from the danger of slavery at home" (emphasis added).
Here it is relevant to note, that the Constitution and the Bill of Rights arose from separate works. The Constitution is the fruit of the debate on the subject of good government, the Bill of Rights is the fruit of the debate on bad government, or, more precisely, government gone bad. Therefore,
The impact of the difference is crucial:
Unlike Amendment 1, the prohibition in Amendment 2 "shall not be infringed" is not addressed to the Congress, nor to the states; it would be nonsensical to do so. If either state or federal power could rightfully disarm us, restraining only the other accomplishes nothing. Conversely, if there is a Right, that the federal government cannot invade it, then for the state to invade it is a wrong.
"[T]he security of a free state" requires both protected organs of a free government and liberties protected from crime and bad government (where bad government often resembles organized crime).
The Right of Arms declared in the Second Amendment is not made dependent on the existance of such organizations as are called Militia, rather, the purpose of this declaration of this right is to assure that, should it ever, in any future time, be decided to instantiate such organizations, an armed citizenry will exist so that they can be constituted, without government assistance if necessary. Indeed, as is belabored elsewhere, this militia may have cause to act against the government, not for it. Who's declaring that there will never be Tyranny arising from Washington D.C., or Albany, New York, or even Mayville, Chautauqua County, which will be worse than what King George did to us?
To recap: The Second Amendment has a clause declaratory of a principle, and a statement of effect. Anything that either compromises the principle or the effect violates this Amendment.
The declared principle: That a well-regulated militia is necessary to the security of a free state.
The effect: No law shall be made or enforced that shall abridge the immunity of the people in keeping and bearing their arms.
Any law that reduces the efficiency of the Militia, or that reduces the capability of the people to keep or bear their privately owned arms, violates this Amendment.
This statute infringes the right to Keep and Bear Arms, and is unconstitutional under the Second Amendment.
As mentioned briefly above with the quote from Griswold v. Connecticut, whatever portion of the Right of Arms, such as we claimed and openly held in common amongst us in 1791, that is deemed (by whomever) to not be part of the Second Amendment, is by such deeming, put into the coverage of the Ninth Amendment. Whereas Griswold holds the Ninth Amendment to be binding upon the States, and whereas the whole Bill of Rights does nothing but make portions of that Grand Continuum of Liberty explicit, therefore holding the Ninth Amendment to be binding upon the states makes Amendment 2-8 binding also.
Take 8 coins, numbered 1-8. Toss them onto a clear floor. The floor is our commonly held rights, liberties, privileges and immunities as of 1791. The part of the floor covered by each coin is the part of that great general liberty covered by each correspondingly numbered amendment. The expanse of floor remaining uncovered is the Ninth Amendment. Pick up any one coin, or all 8, representing a repeal of the corresponding amendment(s), and you only increase the coverage of Amendment 9. The Right of Arms was ours, excepted completely out of the powers of government, state and federal. Whether we put the government on notice not to invade the Right of Arms with the Second Amendment or the Ninth, there is no difference: the right is ours to keep and ours to defend, and the statute at bar is unconstitutional.
I know, I mentioned in my original post that the site was gone again.
Part 8: Barron v. Baltimore 1 of 2.
Applicability:
Therefore, before looking at the Fourteenth Amendment, we study the purposes behind that great Law.
Facts behind Barron v. Baltimore
Before the year 1822, Mr Barron owned interest in a productive deep-water wharf in Baltimore. The City of Baltimore re-directed streams and runoff which resulted in sand and silt filling Barron's wharf-front until it rendered the wharf useless. Mr. Barron sued the Mayor and City of Baltimore for taking the wharf's value, and won $4,500 damages. Baltimore appealed, and Maryland's high Court reversed the judgement. Mr. Barron appealed this reversal to the Supreme Court. Eleven years later, the Supreme Court decided to hear the matter.
The Supreme Court Judgement Barron v. Baltimore held (inter alia):The Judgement v. The Facts
- The provision in the Fifth Amendment to the Constitution of the United States declaring that private property shall not be taken for public use without just compensation is intended soley as a limitation on the exercise of power by the Government of the United States, and is not applicable to the legislation of the States.
- The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of individual States.
- Had 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.
- 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.
Rebuttal: The most effective way to lie is to tell the part of the truth that, if taken as the whole truth, will mislead those who trusted your words. The above holdings are lies of that type.
The Supremacy Clause of the Constitution makes it plain that Rights belonging to the People as declared in the Constitution of the United States (or Bill of Rights) were Rights belonging to the People so far as the States, their Constitutions (if any) and their Bills of Rights (again, if any) were concerned as well, and were Rights belonging to the People even in States without Constitutions or Bills of Rights, even if those States should have articles of law, constitution, or declarations of rights to the contrary. Dred Scott v. Sandford (vide infra) held this point. To hold otherwise is nonsensical. Anything in the Constitution supercedes anything contrary in any Constitution or law of any State. To what could this apply more than the declaration of a Right? Or, what Right do we believe to be ours, that the Federal government shall not touch, but if our State destroy the right with felony statutes and capital punishments, that's fine with us? This is the absurdity of Barron v. Baltimore. How can, then, the Constitution declare a Right as belonging to the people, and a state presume that such is not a right belonging to the people in that State? This is the substance of the Doctrine of Nullification. It is also the substance of Barron v Baltimore. To claim it is the real substance of the Bill of Rights is historically counterfactual.
The ratification debates made this obvious. Freedom of Religion aroused heated and passionate debates as to the wisdom of declaring and protecting such a freedom as a right. Why would such be a concern, if the Bill of Rights had no effect in the States? Let the Federal Government be religion-neutral, and Pennsylvania will be free to require that Catholics pay special taxes. But, the understanding of the delegates was otherwise: They held the Bill of Rights as declaring RIGHTS, not artificial, arbitrary, for-the-heck-of-it limitations on the Federal authority only.
This showed up quite plainly in the Dred Scott vs Sandford decision 25 years later (vide infra). Making Citizens of Negros at the Federal level, whilst holding them slave (or sub-citizen) at the State level (the central point acted on in Scott), and it's parallel in this case: Making handgun ownership (or any right) a right at the Federal level, but a $1000 fine, 1-year-in-jail, and lifetime disarmament penalty misdemeanor (or any other penalty) at the State level, is illogic of a dangerous degree. We shall study the Scott decision next.
To be sure, Federal law does not supercede State constitutions or laws where the Congress had no authority to write the law in question, but the Constitution of the United States cannot, by definition, have such a limit. This is the obvious fact denied by the Supreme Court in Barron v Baltimore, and this denial is the sole foundation stone of that judgement's precedent. This denial is the foundation stone of denial of the Right to Arms in the States. Whether Barron v. Baltimore is cited explicitly or not, the flawed logic thereof is. Law based upon that flawed judgement is unconstitutional.
"As a corporation, they are made liable to be sued, and authorized to sue, to acquire and hold and dispose of property and, within the scope of the powers conferred by the charter, are allowed to pass ordinance and legislative acts, which it is declared by the charter shall have the same effect as acts of assembly, and be operative, provided they be not repugnant to the laws of the state, or the constitution of the state, or of the United States."
Laying aside the obvious, that the Bill of Rights applies everywhere, the Baltimore charter, even without this "Non-repugnance" clause, cannot grant to the city power to write laws repugnant to the Constitutions or laws of Maryland, nor of the United States, any more than a State Constitution can give it's legislature power to defy the federal government in it's proper sphere of action. Therefore, if this non-repugnance clause is to have any effect, it must impose a restriction beyond the absolute minimum limits inherited from the Supremacy Clause of the Constitution of the United States, and the equivalent limitation that a corporation within a state cannot defy the state. What broader restriction could exist? That the Bill of Rights of the federal Constitution (or rather, the Rights declared therein) imposes a limit on the power of Baltimore. Thus: If it be held that the Bill of Rights was not obligatory upon the States by virtue of the points above, it was obligatory by the construction of the Charter of Baltimore, unless we imagine this Charter to have contained meaningless language. The Supreme Court therefore averred that the Bill of Rights was not only not compulsory upon the states or their cities, but also apparently denied that the Constitution of the United States, nor the Bill of Rights, could be adopted by the states (or by cties therein) as applying to them voluntarily such that offences against the Bill of Rights could be redressed in Courts thereof. -->
The defect of the Court's reasoning relative to the facts is: One, treating the Constitution, and the Bill of Rights in particular, as if it were properly construed mere business contract between the States, in which neither the people, nor the United States, have interests that bound the States; and Two, denying obvious things merely because they were not explicitly listed. The language of the Court here reduces rights from Constitutional Writ and Supreme Law to mere moral polemic to be heeded by whoever pleases to heed and discarded by whoever pleases to discard. ...and become a mere collection of political maxims to be adhered to or disregarded according to the prevailing sentiment ... (Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398 (1934)) Cherokee Nation v. Georgia)--> Barron v. Baltimore)--> Brunner v. New York-->
The Judgement vs The Consequences
Was this the Cause of our rebellion: to replace one wicked King with Thirteen? Would not states without Bills of Rights (or without constitutions) then be free in carrying out whatever deprivations and invasions of rights the people thereof would endure, and the people of such States would have no redress but futile rebellion? States could disarm the people, or some of them, search homes and persons without cause or warrant, compel persons to witness against themselves in Court, deny counsel or juries, or impose impossible fines and torture, and in short act like England's worst Kings, and the Bill of Rights was no protection. At least the Supreme Court said so...
And if the States have and ignore Bills of Rights of their own, who shall enforce them against the States? The Court, in Barron v. Baltimore showed itself unwilling to uphold the common law rights, which was all the Bills of Rights of the several States, or the United States, protected; why should the Court be expected to respect the bark of a written State Bill of Rights, seeing they already slew the dog of common law rights? Again, this is strong evidence that the Court's view was in error.