Skip to comments.Frank Creel's Second Amendment Position
Posted on 08/28/2002 9:07:59 AM PDT by ltlflwr
In his responses to the Gun Owners of America 2002 Congressional Candidate Survey, Frank indicated that he supports repeal of the 1993 Brady instant check, and repeal of the 1996 Lautenberg Domestic Misdemeanor Gun Ban (which disarms otherwise law-abiding citizens for life--for offenses as slight as spanking a child or grabbing a spouse's wrist); and that he would oppose federal legislation requiring trigger locks, lock-ups when not in use or manufacturers' installation of "smart gun" technologies. To make his position absolutely clear, Frank attached the following additional statement:
"I take an abolutist position on the Second Amendment, which states that the right of the people to bear arms "shall not be infringed." All good lawyers know that the word "shall" is unexceptionable, and it would take a Clintonista to find wiggle room in the word "not".
As all good constitutional historians know, however, the Bill of Rights was adopted primarily to make the work of the Philadelphia Convention politically acceptable to skeptics in the states asked to ratify it, and that these skeptics were reluctant most of all to create a powerful central government able to threaten American liberties. Accordingly, the Second Amendment, both in letter and spirit, was directed against the Congress of the new federal government. In its pristine and most noble sense, therefore, it does not limit the powers of the states themselves.
That it does now, in fact, limit the powers of the states is due to twisted jurisprudence at the highest level. The corruption of the 14th Amendment has built up a corpus of precedential holdings that, in fact and effect, stands the Bill of Rights on its head. All supporters of the Second Amendment's guarantee should thoroughly deplore and seek to reverse this tragic fact.
As the consequence of this logic, I do not oppose in principle the right of the sovereign states to enact any gun control legislation they are able to gather a majority behind, unless, of course, the constitution of a state mirrors the Second Amendment's guarantee.
I support efforts to bring about such mirroring in the several states. Moreover, as a simple political observation, gun control in states which have liberal majorities do not disturb me because I see no long-term or substantive threat to our general liberties in the phenomenon of liberals disarming themselves piecemeal.
It is critically important for supporters of the Second Amendment to be clear on these matters. It was a great injury to our cause a couple of decades ago when the National Rifle Association joined in the effort to strike down the gun ordinance of Morton Grove, IL. Not only did that tragic misstep lend legitimacy to the continuing corruption of the 14th Amendment, and thereby threaten all the liberties enshrined in the Bill of Rights; it also poisoned public opinion and started the process which has now resulted in the erosion of the Second Amendment in the federal context."
A close reading of the bill of rights suggests that some of the amendments were intended only as a check on the power of congress--eg the first amendment, which states 'congress shall make no law . . .' Obviously, this amendment limits only congress. So the "incorporation" dipsy doodle of the Warren Court was necessary to apply the first amendment as against the states.
By way of contrast, the second amendment states that the rights of the "people" to keep and bear arms "shall not be infringed." Congress is not mentioned. In fact, by using the passive voice, the second amendment does not have congress, or the federal government, as the subject of the sentence. It seems to say that noone may infringe the right to keep and bear arms.
Do any FREEPERS know if the legislative history of the second amendment sheds any light on this argument?
Well, not quite. I'll happily grant that the XIV Amendment is flawed and has been used to perverted ends, further weakening the Constitution's effect. But in addition to that far from perfect precedent, there's also the matter of the phrasing of Article VI regarding the legal supremacy of the constitution itself:
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; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.And, of course, recall also the Supreme Court's finding from Marbury vs. Madison, in 1803:
All laws which are repugnant to the Constitution are null and void.
[Marbury vs. Madison, 5 US (2 Cranch) 137, 174, 176, (1803)
...All supporters of the Second Amendment's guarantee should thoroughly deplore and seek to reverse this tragic fact.
All generalities are untrue.
Have you read Harry Byrd, Jr.'s, excellent little book: Against The Odds, I believe is the title. (My copy is at home.)
It deals with his successful Virginia race for the Senate as an independent.
William Flax Return Of The Gods Web Site
It's a legitimate question but I don't know if it's germain.
The right to self protection is "in the eye of the beholder". By that I mean that the issue of the method of self protection is individual and only balanced by the rights of other individuals that my actions might effect, not the government's policy.
Nonsense. Ever read Nunn v State? The state of Georgia certainly didn't have any qualms about applying the second amendment to themselves.
Furthermore, the whole premise of political power in the republic should be the kicker when looked upon in the context of the tenth amendment.
All of the power for any government, federal or state, was derived by the people. The preamble deals with this and makes it plain...We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
The Declaration of Independence, while not legally binding, is also clear about this:
That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.
The tenth amendment sets this in stone and makes it clear that powers not reserved to the federal government is reserved to the states and the people respectively.
Thus, rights cannot be infringed by states since they are powers reserved to the people. Off-limits to any body of government since they were not granted by government and since they are reserved by the people.
And from a philosophical and logical point of view, "the people" cannot cede powers to government which they do not first posess.
No person has the power to disarm another without the initiation of force. In other words, such an act would be a crime. It would be like claiming the government could accept powers of indiscriminate murder by a majority vote of the people in a general election.
How could the government morally or logically accept such powers since the people had no such power to give?
While it may be true that the context of the second amendment should be looked at as a restriction on the federal government as written, it clearly, in combination with other elements of the constitution (irregardless of the so-called "incorporation" doctrine) enumerates a fundamental human right which shall not be infringed by anyone.
Yes, but these instances are prohibitions on states attempting to assume overlapping jurisdiction.
There's a difference between that and the rights listed in the bill of rights. The tenth amendment makes it clear that rights are reserved to the people. They are therefore off-limits to the states.
Introducing an "eye of the beholder" standard starts being very subjective. When you have leftist judges, their eyes perceive no need for self protection regardless what the constitution says. I'd much rather go with what our founders actually intended when interpreting the constitution.
Not in all of those instances. In the case I referred to about ex post facto laws, the purpose was to extend the prohibition against the states that Section 9 only imposes on the federal government.
The tenth amendment makes it clear that rights are reserved to the people. They are therefore off-limits to the states.
This is the tenth amendment, with emphasis provided by me: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." It's purpose is only to restrict federal powers. It deliberately leaves open the question of where the dividing line is between the powers of the states and of the people.
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