"All persons born or naturalized in the United States, and subject to their jurisdiction, shall be 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."
With these words the 39th Congress intended to
The mechanism of this method was simple to their understanding.
"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States".
The language of the amendment is clear. Article 4 § 2 ¶ 1 of the Constitution provides: "The Citizens of each State shall be entitled to all privileges and immunities of Citizens of the several States." When a New Yorker visits Pennsylvania, the visitor must be treated by everything and everybody in Pennsylvania as if the visitor were a Pennsylvanian. The language of Barron v. Baltimore provided that we also have "privileges and immunities", arising from the bill of rights, that we may enjoy in Federal Court as citizens of the United States. This clause of the Amendment declares that our "privileges and immunities" as citizens of the United States shall not be abridged by State laws in State courts, just as they cannot by Federal laws in Federal Court. In words plainer to our understanding today, the Bill of Rights is a cloak and mantle of rights, liberties, privileges and immunities that we wear in Federal Court, as of the ratification of the 14th Amendment we are entitled to wear this same cloak in any State Court. The state may add to this cloak and mantle, but may not reduce it below what we have by right as citizens of the United States.
These "Unconstitutional" things kept happening, and with the blessing of the High Court. Therefore, a comment on Stare Decisis. No Judge was ever put under any Oath to give a Purple Damn what the Supreme Court ever wrote, but they are put under Oath to uphold the Constitution. If a Century of Judges and their Judgements assigns Black folk to the back of the bus, as it was the day Rosa Parks sat in the front thereof, should the Court have hearkened to the Stare Decisis of "Separate but Equal", or to the Constitution? Clearly, neither a Century, nor a Millenium, of defiance against the Constitution justifies another minute of perpetuation of that defiance.
Critical to the matter at hand, the Congress intended to affix the Federal Bill of Rights, and more, as indelible appendages to the Constitutions of the several States, by affixing the privileges and immunities belonging to citizens of the United States, to those citizens, in a manner that the States could not abridge. Henceforth, when we venture into State Courts, we take our Federal Court Privileges and Immunities with us. There were no controversies on this point but (1) whether this included the 9th Amendment, or just 1-8 (NOBODY questioned that it included the 2nd Amendment), and (2) whether it was a good idea. This is true not only for the members of the 39th Congress, but also for the State Legislatures North and South, newspapers East to West, and the whole body public. Everybody understood what the 14th Amendment would do: make the Bill of Rights binding upon the States.
In the language and dialectic of the authors of the 14th Amendment, for New York to disarm it's citizens of firearms to any degree is to impose a badge of slavery upon them, a badge of subordinate or second-class citizenship. This is why this anti-pistol law arose: to keep immigrants powerless in the face of the (corrupt) New York City Police and other union-busters and strike-breakers. The Legislature of New York wrote this Statute in defiance of the 14th Amendment, knowing that the Supreme Court would uphold defiance of the 14th Amendment. In fact, the Supreme Court led the way with Plessy v. Ferguson,163 U.S. 537 (1896) which made "Separate but Equal" the Supreme Law of the Land, or rather, the "Supreme Lie of the Land."
The writing of the 14th Amendment was not isolated, but consistent with the other labors of the 39th (and adjoining) Congresses. These labors included
All of these labors had a common thread: Halting the reductions of Rights of human beings by the States. The votes for and against the 14th Amendment in the House and Senate, respectively, were 120 to 32 (79%) and 33 to 11 (75%). As a point of interesting trivia, opposition to the 14th Amendment in Congress had in it's leadership one Senator Reverdy Johnson of Maryland, who was attorney for Mr. Sandford in Dred Scott v. Sanford. Opposition to the 14th Amendment, in and out of the Congress, was uniformly racist. The Freedman's Bureau bills and the Civil Rights bills spelled out (inter alia) that keeping and bearing arms by individuals was NOT to be obstructed by the conquered Southern States; Congress went to the extreme of abolishing the Militia of those States (in the time period of 1866-1869) in the attempt to halt the disarmament of Freedmen (who were generally excluded from Militia membership) by these State sponsored organizations.
Stephen P. Halbrook wrote:
Of particular note is the front-page press coverage given to Senator Jacob M. Howards speech introducing the Fourteenth Amendment to the Senate on 23 May 1866. That speech included his explanation that the Fourteenth Amendment would compel the states to respect "these great fundamental guarantees:... the personal rights guaranteed by the first eight amendments of the United States Constitution such as ... the right to keep and bear arms ..." On the next day, these words appeared on the first page of the New York Times and the New York Herald, and were also printed in such papers as the Washington, D.C., National Intelligencer and the Philadelphia Inquirer...Numerous editorials appeared on Senator Howard's speech, none of which disputed his explanation that the Fourteenth Amendment would protect freedoms in the Bill of Rights (such as keeping and bearing arms) from State infringement.
(That Every Man Be Armed, Stephen P. Halbrook pp117 citing New York Times, 24 May 1866, at 1, col. 6; New York Herald, 24 May 1866, at 1, col.3; National Intelligencer, 24 May 1866, at 3, col 2; and Philadelphia Inquirer, 24 May 1866, at 8, col 2.)
Examples of the public understanding of the individual right to keep and bear arms as a fundamental right protected by the Second, Thirteenth, and Fourteenth Amendments--expressed in all kinds of publications--pervade the months during which the Fourteenth Amendment was being considered for ratification and, indeed, during the entire period of Reconstruction. Inescapably, the people in that epoch considered the right to keep and bear arms as a basic right of citizenship.
That Every Man Be Armed, p120.
We have records of how five of the States considered the proposed 14th Amendment. The remainder saw and heard enough in the Press that there was, apparently, little to discuss. We think it cannot be imagined that an Amendment to the Constitution would be carefully and maturely considered without notes of their discussions, if there was any point in controversy.
The Committee on Federal Relations in the Massachusetts General Court split between a majority holding that the Bill of Rights already bound the States, and hence that § 1 of the Amendment was unnecessary, and a minority agreeing that the Bill of Rights already bound the States, but recommending adoption of the 14th Amendment to leave no doubt on the subject. The majority cited the Privileges and Immunities and Republican Form of Government clauses, as well as four provisions of the Bill of Rights, including the following:
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.
Nearly every one of the amendments to the constitution grew out of jealousy for the rights of the people, and is in the direction, more or less directly, of a guarantee of human rights ... [T]hese provisions cover the whole ground of section first of the proposed [14th] amendment.
The remainder of the first section, possibly excepting the last clause is covered in term by the provisions of the Constitution as it now stands, illustrated, as these express provisions are, by the whole tenor and spirit of the amendments. The last clause, no State shall "deny to any person within its jurisdiction the equal protection of its laws," though not found in these precise words in the Constitution, is inevitably inferable from its whole scope and true interpretation. The denial by any State to any person within its jurisdiction, of the equal protection of the laws, would be a flagrant perversion of the guarantees of personal rights which we have quoted.
That Every Man Be Armed, p120,121 citing MASS H.R. DOC No. 149, at 3,4 (1867).
Defendants observe that the Massachusetts legislature thought itself unbound by Barron v. Baltimore, and thought it's citizens fully protected by the Bill of Rights.
Texas' legislature split on the question of ratification of the Fourteenth Amendment, the minority was for ratification because it would protect the right of the Freedman to keep and bear arms; the majority was against ratification, for exactly the same reason. That Every Man Be Armed, p121,122
Wisconsin's debates provide a telling point:
Why, then is it necessary to engraft into the federal constitution that part of section one [of] the amendments which says: "Nor shall any state deprive any person of life, liberty, or property, without due process of law?"Why ask why? Because the members of the legislature of Wisconsin thought such rights were already protected, within Wisconsin and everywhere, by the Federal Constitution and it's Amendments.
Pennsylvania and Indiana, like Texas and Massachusetts, split on whether to support or oppose the 14th Amendment, and all five states had this in common: they held that the 14th Amendment added nothing to the white man's liberties, because these liberties were secured to them, individual by individual, by the Federal Constitution's Bill of Rights. The 14th Amendment, they held, would secure all the rights of the Bill of Rights to the Negro, because no state could, any longer, deny the Bill of Rights.
From this can be learned, that the right to keep and bear arms, declared in the Bill of Rights, Amendment 2, was a common right and individual liberty of the common man; and that the 14th Amendment made this right expressly uninfringeable by the states, whereas it was beforehand implicitly so. Pointedly, the Right to Arms was no longer deniable to hated minorities, and nothing of Barron v. Baltimore was left intact.
The text of the 14th Amendment does not include the word "right". We show three views upon this language.
This clarifies beyond question that the Rights, Liberties, Privileges and Immunities of Citizens of the United States (which included everything in the Bill of Rights) could not be abridged by any of the States. This had always been implicit, as was shown in the study of Barron v. Baltimore; now it became also Constitutional Writ.
"selective incorporation" is Selective Intransigence
As has been noted: when votes are taken on the question of amending the Constitution, the Courts and their Judges are without suffrage. Their beliefs are irrelevant to the proceedings. They are not invited to make speeches or propound opinions, they are given Marching Orders. If they cannot carry them out fully and completely, they owe it to their Oath and to the People to whom they have given that Oath, to vacate their benches. The doctrine of "selective incorporation" applying some of the several elements of the Federal Bill of Rights onto the States via the 14th amendment is usurpation, by the Supreme Court, of the Amendmentory process. This matter should culminate in a 9-0 decision stating "The Constitution says it, we believe it, that settles it! The right to guns is as broad as the right to books, the right to arms as broad as the right to publish." The Bill of Rights, amendments 1-9, are, by the 14th amendment, now a part of the Constitution of every State, and the Stare Decisis of every decision of every Court.
Following the Civil War, before proposing the 14th Amendment to the States, the 39th Congress wrote several laws which underscored the understanding that being armed, particularly for the purpose of resisting criminals in or sponsored by government, was a fundamental right, a natural right, and a Constitutional right, meaning the Second Amendment to the Constitution of the United States.
Freedman's Bureau Act 14 Stat 176-177 (1866, veto overridden, emphasis added) read in part:
the right ... to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens of such State or district without respect to race or color or previous condition of slavery.
Congress enacted this law through a veto override of more than two-thirds. This language of the Freedmans Bureau act showed what the Congress of 1866 thought free mens rights were. The same two-thirds of the same Congress wrote the 14th Amendment with the intention of securing these same rights to citizens after reconstruction ended, and in perpetuity as inviolable by the States with the language:
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...
New York concurred, by ratifying the 14th Amendment.
The Freedmens Bureau Bills showed this repeatedly; each time it was renewed, many prosecutions of disarmament crimes committed by southern states, took place. Writing the bill, overriding President Johnson's veto (succeeding on the second attempt), and writing revisions to that law, all featured debates in Congress, all of which note the oppressions that the Freedmen (Negro former slaves in the South) suffered at the hands of the Southern State governments. High on the list of outrages was disarmament by statute, and disarmament by the state militia organizations, acting, in modern parlance, as government-sponsored criminal street gangs. Disarmed Freedmen were vulnerable to whatever other outrages were aimed at them.
The Civil Rights Bill of 1866 required the States to cease depriving the Freedmen of their Constitutional rights, including the Right to Keep and Bear Arms.
When State and Federal Courts refused to redress the grievances of the Freedmen as embodied in the Civil Rights Bill, the Congress wrote the 14th Amendment, and amended the Freedmen's Bureau Bill to terminate the Military Occupation of the Southern States when they agreed to ratify the 14th Amendment.
Summary: the "privileges and immunities" of § 1 sentence 2, clause 1, included keeping and bearing ones personal arms, rendering all disarmament laws unconstitutional. Every available indicator touching upon the Right to Keep and Bear Arms, from the founding of the British Colonies to the end of Reconstruction has a consistent theme, to wit: The right to keep and bear arms is individual and inalienable by state, federal, or any other government; with a consistent sub-theme, to wit: Racist aspirations and bigotry, and disarmament statutes and actions, go hand in hand. The Right of Arms is, by the Second Amendment, Immune to the legislative powers of the Congress (at least), and by the 14th Amendment, is immune to the legislative powers of the States. Whoso does not understand this simply refuses to understand.
The 14th Amendment, this great saga of Rights of hated peoples in running conflict with prejudice in office, the invasions of the Rights of Negros and the defense thereof by the 39th Congress, is studied and documented closely, particularly as touching the disarmament crimes perpetrated by Southern State governments, and the intention of the 39th Congress to put a halt to these practices by the 14th Amendment, in Stephen P. Halbrook's Freedmen, the Fourteenth Amendment, and the Right to Bear Arms.
Congress, the Second Amendment, and the Right of Arms.
The Federal Militia Act (1792)
That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of the age of eighteen years, and under the age of of forty-five years (except as hereinafter excepted) shall severally, and respectively be enrolled in the Militia by the Captain or commanding officer of the company, within whose bounds such citizens shall reside... That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, [..other equipment...]; or with a good rifle, [...other equipment...]; and shall appear so armed, accoutred, and provided, when called out to exercise or into service... and also, for Dragoons: Each Dragoon to furnish himself with ... a pair of pistols, a sabre, and cartridge box to contain twelve cartridges for pistols.
Quoted from Clayton Cramer "For The Defense Of Themselves And The State" pp 8 & 12, with attribution: from Joseph Gales, ed., Debates and Proceedings in the Congress of United States, (Washington: Gales & Seaton, 1843), hereinafter cited as Annals of Congress, 2 Cong., May 8 1792, 1392 and Charlene Bangs Bickford & Helen E Veit, ed., Documentary History of the First Federal Congress 1789-91, (Baltimore: Johns Hopkins University Press, 1986), 5:1465.
The second Congress exercised it's authority to provide for organizing, arming, and disciplining the Militia, by laying the burden of owning battle-quality weapons upon almost every free white adult male in the United States. These persons were obligated by law to possess a firearm and a minimum supply of ammunition and militiary equipment. This statute, incidentally, remained in effect into the early years of the 20th Century as a legal requirement of gun ownership for most of the voting population of the United States. Citizens were not exempt by virtue of belonging to a state that forbade weapons, or certain weapons; it would be nonsensical to do so: Federal law supercedes and annuls state law where the two both operate on the same object, and where the Congress has specific authority to write the law in question. As it is obvious that the States cannot frustrate the Congress in their assigned duty, the States lack power to outlaw possession of weapons. Conversely, if the Second Amendment does not apply to the States, then this law violates the Tenth Amendment protected Police Powers of the States.
The Congress has never given the States leave to make possession of any weapon unlawful. Nor could it do so. Congress is not only restrained from disarming us to any degree, it is under a burden of duty to see to our arming sufficiently that we may protect our liberty against all enemies: foreign, domestic, and elected. If this duty is neglected, it returns to the States and to the People (see the 10th amendment); if the States neglect our general arming, the power returns to us, the people (see the 10th Amendment).
This requirement to own specified weapons did not declare a maximum amount of weaponry we had any right to own, but declared a minimum amount of weaponry we were required by Federal law to own. Note that this minimum included handguns.
Since it is outside the powers of any State to render a Federal law without effect (if the Federal law operates on Congress's enumerated responsibilities), and since providing for organizing, arming, and disciplining the Militia is expressly a Federal responsibility, THEREFORE, state weapon prohibition laws are generally violative of federal jurisdiction, and are void. The statute at bar forbids ownership of weapons Congress has power and authority to require us to own, and is therefore VOID.
The Freedmen’s Bureau Act of 1866, the Civil Rights Bills, and the 14th Amendment
With the end of the Civil War, slavery was declared ended. The Southern States, prohibited from using chains of iron on the black man, wrote chains of parchment called The Black Codes, which (inter alia) made it illegal for freemen to exercise basic civil, political, and personal rights; including the right to purchase, own and carry firearms. Congress responded to this challenge repeatedly, through the passage of the Freedmen’s Bureau Acts, the civil rights bills, the Militia Disbandment bill, and by proposing the Fourteenth Amendment. These were discussed above.
10 USC §§ 311 & 312
The act established the National Guard. The 1990's National Guard, and similar state-operated forces, had, in the 1790's, the name "select militia", and were held in great dread and general derision as little better than a standing army. In the 1700's, the Kings Army enforced unpopular laws (popular laws needed little enforcement). Our National Army has the respect and affection of the people, largely because it is not employed in enforcement of laws within the United States.-->
This Statute is important here mostly for what it is not.
It is obvious that Congress cannot re-define who is a person, so as to exclude people not in favor with government. Person is a term of the Constitution itself, and can only be redefined by an amendment to the Constitution.
Likewise, the term Right and Property, Tax and Regulate cannot be redefined by a federal law, as these are term of the Constitution.
Militia is also a term of the Constitution, and cannot be redefined by Congress, only by an Amendment.
Therefore, the terms of 10 USC §§ 311 & 312, being "Organized Militia" and "Unorganized Militia", have NO IMPACT on the Second Amendment nor what is protected thereunder, and in fact have no impact anywhere outside of 10 USC §§ 311 & 312 and statutes that specifically reference these two sections of federal law.
It also is significant to understand that these sections draw upon Congress's authority (Art 1 § 8 cl 12) to raise and support armies, not their authority (Art 1 § 8 cl 15 & 16) to do anything with the Militia, nor the Militia of the several States. This is why the National Guard can be compelled to serve at the Presidents Order in foreign Nations (Central America and Saudi Arabia), whereas the Militia of the several States can only be called out "to execute the Laws of the Union, to suppress Insurrections, and repel Invasions".
The Framers, the Congress, US v. Miller, and Perpich v. Dept. of Defense all hold that the militia is more than the State and National Guards, it is the whole of the people.
The National Firearms Act of 1934 (NFA)
Before passage of the NFA (taxation and registration of machineguns and sawed-off weapons), there was detailed discussion between the Attorney General and lawmakers as to how to pass the law without violating the Second Amendment. These discussions illustrate that lawmakers considered the Second Amendment an individual right. During one crucial hearing discussion, Congressman David J. Lewis inquired about reconciling the bill with the Second Amendment’s individual right to keep and bear arms:
MR. LEWIS: Lawyer though I am, I have never quite understood how the laws of the various States have been reconciled with the provision in our Constitution denying the privilege to the legislature to take away the right to carry arms.
Defendants comment:
The Federal Firearms Act of 1938
In 1938, Congress passed the FFA, which regulated interstate commerce in firearms and prohibited possession of firearms by felons where an interstate nexus could be demonstrated. The FFA raised concerns over the infringement of rights guaranteed by the Second Amendment as well as highlighted Congressional support for individual gun ownership. In the early discussions on Second Amendment limitations, Senator William King stated to Senator Copeland, the chief sponsor, that "we have a constitutional provision that right of the people to keep and bear arms shall not be infringed ... [and I] was wondering if this bill was not in contravention of the constitutional provision."
Denying that the FFA infringed upon the Second Amendment, Copeland argued that
[t]he part relating to militia is important ... [as the] first part of the constitutional provision.
Senator McKellar responded,
while [the Second Amendment] refers to the militia, the provision is all-inclusive and provides that the right of the people to keep and bear arms shall remain inviolate.
Since the FFA purportedly related to regulation of Interstate Commerce, not individual gun ownership, little more mention of the individual right to keep and bear arms under Second Amendment protection was discussed. In support of individual gun ownership, the Senate Committee explained that the FFA was designed to impact criminals, not law abiding citizens:
The bill under consideration...is designed to regulate the manufacture of and the shipment through interstate commerce of all firearms. ...It is believed that the bill above referred to will go far in the direction we are seeking and will eliminate the gun from the crooks’ hands, while interfering as little as possible with the law abiding citizen from whom protests have been received against any attempt to take from him his means of protection from the outlaws who have rendered living conditions unbearable in the past decade.
Defendants note that
The 1941 Private Property Acquisition Act (PRA)
Congress asserted the Second Amendment as an individual right by exempting privately-owned firearms from the PRA. Less than two months before Pearl Harbor, Congress passed legislation authorizing Presidential requisition of many properties with militiary uses from the private sector upon payment of fair compensation.
Protections for Second Amendment rights were included in the PRA:
Nothing contained in this Act shall be construed-
- to authorize the requisitioning or require the registration of any firearms possessed by any individual for his personal protection or sport (and the possession of which is not prohibited or the registration of which is not required by existing law),
- to impair or infringe in any manner the right of any individual to keep and bear arms...
Originally, the bill did not include language protecting the individual right to keep and bear arms, but the House Military Affairs Committee added these provisions, noting:
It is not contemplated or even inferred that the President, or any executive board, agency, or officer, would trespass upon the right of the people in this respect [to keep and bear their privately owned arms]. There appears to be no occasion for the requisition of firearms owned and maintained by the people for sport and recreation, nor is there any desire or intention on the part of the Congress or the President to impair or infringe the right of the people under [amendment] 2 of the Constitution of the United States, which reads, in part, as follows: "the right of the people to keep and bear arms shall not be infringed." However, in view of the fact that certain totalitarian and dictatorial nations are now engaged in the willful and wholesale destruction of personal rights and liberties, your committee deem[s] it appropriate for the Congress to expressly state that the proposed legislation shall not be construed to impair or infringe the constitutional right of the people to bear arms. In so doing, it will be manifest that, although the Congress deems it expedient to grant certain extraordinary powers to the Executive in furtherance of the common defense during critical times, there is no disposition on the part of this Government to depart from the concepts and principles of personal rights and liberties expressed in our Constitution.
This provision was essential for the preservation of the individual right to keep and bear arms because if private guns were registered, the government could confiscate them. Compare the retention of private guns with the plight of the National and State Guard units organized under the Dick Act (10 USC §§ 310 & 311): the War Department began taking back all the rifles it had previous issued to them. If, as the gun banners contend, the entire militia is only the "select" militia (the State and National Guards), then the Second Amendment is the first guarantee of the Bill of Rights to cease to exist. Under the PRA, the State and National Guards were disarmed, and they may again be disarmed again in the future. Please note that the Government held, in it's 150th year of Stare Decisis, that registration of privately owned firearms was unconstitutional under the Second Amendment.
The 1968 Gun Control Act (GCA'68)
Key provisions of this act, particularly as applicable to the case before the Court, have their review under Due Process in United States v. Bass and Lewis v. United States, vide infra.
From Lewis,
As the Court has previously observed, [the GCA] "was hastily passed, with little discussion, no hearings, and no report." United States v. Bass, 404 U.S. 336, 344 (1971).
Defendants suggest that from the comment shown, that the GCA was a panic-reaction, or "drive-by legislation", accordingly the GCA should be taken with a few tons of salt as a statute not based upon investigation or findings of any particular kind. It should be noted that this law made great inroads against the freedom of the people to exercise their Right of Arms, breaking with 177 years of Stare Decisis.
In general, it is noteworthy that the powers to legislate are bounded on the one hand by the language of the instrument establishing that power, and on the other by the Bill of Rights. This is as true of State legislative powers as it is of Federal legislative powers.
It also is worthy on note, first, that the language of the debates surrounding the writing of the GCA include note of the right of the people to keep and bear arms as an individual right; and, second, that the Congress in 1986 wrote the FOPA (vide infra) to increase the protection of this right by decreasing the power of the GCA.
The Consumer Product Safety Act of 1976 (CPSIA)
When Congress authorized broad, sweeping powers to the Consumer Product Safety Commission, there was a concern that over-regulation would impact the individual gun ownership. An exemption from the law was created for the manufacture and sale of firearms or firearms ammunition. Pub. L. 94-284, Sec. 3(e), May 11, 1976, 90 Stat. 504, provided that:
The Consumer Product Safety Commission shall make no ruling or order that restricts the manufacture or sale of firearms, firearms ammunition, or components of firearms ammunition, including black powder or gunpowder for firearms.
It is clear that this amendment was adopted specifically to protect individual gun owners from intrusive and overbearing government bureaucracy and the restrictions that could occur. Although the Consumer Product Safety Act does not specifically invoke the Second Amendment, the CPSIA does reflect Congress’s consistent desire to protect individual gun ownership. -->
The Report of the Subcommittee on the Constitution in 1982
Reference 97th Cong., 2d Sess., The Right to Keep and Bear Arms, 83-109 (1982)
The United States Senate declared it's understanding of the meaning of the Second Amendment in the February 1982 Report of the Subcommittee on the Constitution of the Committee on the Judiciary in the 97th Congress, "The Right to Keep and Bear Arms". It was a unanimous, bipartisan and strongly-worded Report supporting the individual right to keep and bear arms.
The report starts with the note:
The values of the Framers of the Constitution must be applied in any case construing the Constitution. Inferences from the text and history of the Constitution should be given great weight in discerning the original understanding and in determining the intentions of those who ratified the Constitution. The precedential value of cases and commentators tends to increase, therefore, in proportion to their proximity to the adoption of the Constitution, the Bill of Rights or any other amendments.
Powell v. McCormack, 395 U.S. 486, 547 (1969).
The report cites the common law as containing an individual right to arms which the Defendants have illustrated, supra.
In his opening remarks, Senator Orrin Hatch wrote:
What the Subcommittee on the Constitution uncovered was clear--and long-lost--proof that the second amendment to our Constitution was intended as an individual right of the American citizen to keep and carry arms in a peaceful manner, for protection of himself, his family, and his freedoms.
Sen. Dennis Deconcini echoed respect for the Second Amendment, quoting Thomas Jefferson and Samuel Adams and noted:
The right to bear arms is a tradition with deep roots in American society… I have personally been disappointed that so important an issue should have generally been so thinly researched and so minimally debated both in Congress and the courts.
The report then quoted Framers of our Constitution, Legal Commentators of the time, and various court cases. The concluding paragraphs destroy the notion that the "militia" is the National Guard of today and reaffirm the Second Amendment as an individual right:
That the National Guard is not the "Militia" referred to in the second amendment is even clearer today. Congress has organized the National Guard under its power to "raise and support armies" and not its power to "Provide for organizing, arming and disciplining the Militia" This Congress chose to do in the interests of organizing reserve militiary units which were not limited in deployment by the strictures of our power over the constitutional militia, which can be called forth only "to execute the laws of the Union, suppress insurrections and repel invasions." The modern National Guard was specifically intended to avoid status as the constitutional militia, a distinction recognized by 10 U.S.C. Sec 311(a).
This being the word of Congress on the matter, and the Congress being co-equal with the Courts and the Presidency, nay-saying this statement requires the nay-sayer to bear the burden of proof of their assertion.
The Firearms Owner Protection Act of 1986 (FOPA)
Congress again declared the individual nature of the right to keep and bear arms in passing the FOPA, by finding that:
(1) the rights of citizens—
(A) to keep and bear arms under the second amendment to the United States Constitution;
(B) to security against illegal and unreasonable searches and seizures under the fourth amendment;
(C) Against uncompensated taking of property, double jeopardy, and assurance of due process of law under the Fifth Amendment; and
(D) against unconstitutional exercise of authority under the ninth and tenth amendments; require additional legislation to correct existing firearms statutes and enforcement policies; and
(2) additional legislation is required to reaffirm the intent of the Congress, as expressed in section 101 of the Gun Control Act of 1968, that "it is not the purpose of this title to place any undue or unnecessary Federal restrictions or burdens on law abiding citizens with respect to the acquisition, possession, or use of firearms appropriate to the purpose of hunting, trap shooting, target shooting, personal protection, or any other lawful activity, and that this title is not intended to discourage or eliminate the private ownership or use of firearms by law abiding citizens for lawful purposes."
The FOPA enforces the Second Amendment protection through prevention of registration of most firearms by providing:
…No such rule or regulation prescribed after the date of the enactment of the Firearms Owners’ Protection Act may require that records required to be maintained under this chapter or any portion of the contents of such records, be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or any political subdivision thereof, nor that any system of registration of firearms, firearms owners, or firearms transactions or dispositions be established.
The FOPA continued the no-registration policy of the PRA. This protection even carried over to appropriation budgets of the Bureau of Alcohol, Tobacco and Firearms (BATF). Congress has included the following provision in every BATF appropriation act since 1978:
Provided, That no funds appropriated herein shall be available for administrative expenses in connection with consolidating or centralizing within the Department of the Treasury the records of receipts and disposition of firearms maintained by Federal firearms licensees or for issuing or carrying out any provisions of the proposed rules of the Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, on Firearms Regulations, as published in the Federal Register, volume 43, number 55, of March 21, 1978....
The Brady Handgun Control Law of 1993
The Congressional prohibition on firearm/firearm-owner registration is reaffirmed again in the Brady Law. Section 103 dealing with the National Instant Criminal Background check system reads in part:
(i) Prohibition Relating To Establishment of Registration Systems With Respect to Firearms. - No department, agency, officer, or employee of the United States may --
(1) require that any record or portion thereof generated by the system established under this section be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or political subdivision thereof; or
(2) use the system established under this section to establish any system for the registration of firearms, firearm owners, or firearm transactions or dispositions, except with respect to persons, prohibited by section 922(g) or (n) of title 18, United States Code, or State law, from receiving a firearm.
This portion of Brady continues the policy from the Constitution forwards, all of which specifically acknowledges the individual right to keep and bear arms as declared in the Second Amendment. -->
18 USC §§ 241 & 242
These sections of Federal Criminal code serve to show that States, and the officers thereof, are guilty of a felony if they invade (or conspire to invade) the Constitutional rights of the Citizens. That these officers wear a badge or a nice suit or a black robe gives no immunity to this felony statute. They may be enforcing a State law, and still be guilty of this felony, because State law does not shield the State, nor Police, Prosecutors, or Judges from Federal law operating in a Federal sphere. Section 5 of Amendment 14 "Congress shall have power to enforce, by appropriate legislation, the provisions of this article" puts the protection of the "privileges and immunities of citizens of the United States" and the guarantee of their rights of Due Process within the Federal sphere.
This serves to show that various state law and case law gimmicks used to excuse State officials in the denial of Constitutional Rights is rebellion, by the state and those state officers, against the Constitution and Laws of the United States, which do surely protect Constitutional Rights from state enfringement (elsewise there is nothing for these sections to enforce).
§§ 241 & 242 are as old as the 14th Amendment. They came into existance first during Reconstruction, and the cause that provoked it, according to the Congress that wrote both the 14th Amendment and this Statute's ancestor, was State officers and KKK gangs disarming black folk, and then perpetrating outrages of numberless varieties upon the now helpless Black citizens, from denying them the right to vote, to robbing them of household goods and burning down their houses, to murder. Everywhere these horrors fell upon the Black folk of the Southern States, disarmament went first, so that these American Citizens could not resist a criminal government.
Defendants hold that the Legislature of the State of New York did conspire to deprive the Brunner family (and virtually all of New York State) of their Right to Arms under the Second and Fourteenth Amendments to the United States Constitution by the act of writing this statute, that the four Police officers who obtained and served a Warrant seizing the handgun and arresting Defendants conspired voluntarily to perpetuate this invasion of rights, personalizing it against the Brunner family, and that the Judges and Prosecutors who have had this matter in their hands, who have not promptly slain this statute, do voluntarily join this conspiracy to deprive citizens of the United States of their Right to Arms, and are properly within the grasp of this Federal Felony Statute.
42 USC § 1983
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
The attitude of many Police Officers and Courts, that Laws are sacred and Rights can go fend for themselves, is in sharp contrast with the intention of the Authors of the 14th Amendment, whose actions in writing that Amendment and this Law provided a means to sue Police and Courts who enforce Unconstitutional statutes, for all they are worth. This law puts every officer of every State on Notice, that an unconstitutional statute is to die by their hands as soon as it enters their hands; elsewise they, the officers of a State, by carrying out and putting into effect an unconstitutional statute, are personally liable for invading the rights of a citizen of the United States. For this they may be found liable for damages of bankrupting magnitude.
This statute is also as old as the 14th Amendment and 18 USC §§ 241 & 242, and serves to protect rights, by allowing the Citizenry to bring the wrongdoers before a federal Judge independently of the Prosecutor, and they may do so in addition to any prosecution. It relieves the plaintiff of proving conspiracy, of pursuing violators in groups, and allows for joint and several damages claims.