Frank Creel's Second Amendment Position

FrankCreel.org ^ | 8/27/02 | Frank Creel

[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."

[ltlflwr]

My father is quite clear on this issue. You can help his campaign at FrankCreel.org!

[ltlflwr]

ping!

[ffrancone]

I am not sure Mr. Creel is correct in his interpretation of the second amendment. His beef is with the idea that the 14th amendment "incorporates" the bill of rights as against the states. I agree with Mr. Creel that the incorporation doctrine was a pernicious piece of judicial legislation. But I do not think that incorporation is necessary to apply the second amendment to the states.

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?

[Siobhan]

BUMP

[archy]

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.

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.

--Mark Twain

[basil]

Just curious--what state do you have to live in to vote for this guy?

[Frank Creel]

I wish the Supreme Court were as attentive to the language of the Constitution as you are! You are correct that the "shall not be infringed" is not explicitly directed at Congress, but when the Bill of Rights was being adopted the drafters could have had no other governmental authority in mind. Similarly, in the First Amendment context, the drafters said "Congress" because it was inconceivable to them that the judicial branch would ever enter the legislative arena and someday violate the "free exercise" clause by forbidding school children to pray.
I formed my views on the 14th Amendment and the doctrine of incorporation from a reading 25 years ago of (recently deceased) Prof. Raoul Berger's "Government by Judiciary" (is the title correct, FReepers?), in which his thesis was that later Supreme Court construction of the amendment was far removed from the limited aims of its propounders and sponsors (to heal the nation of its Civil War scars rooted in maltreatment of slaves and former slaves). I think those views are validated further by our historical assurance that the Founders regarded the Second Amendment as the ultimate guarantee against the return of tyranny to these shores. Neither they nor anyone today could see any individual state as a serious threat to our general liberties; if any individual state turns oppressive, citizens can always vote with their feet, carrying their weapons with them to a more liberty-loving domicile.

As a practical matter, this discussion is largely academic. I personally favor state constitutions which mirror the federal Second Amendment and, in any event, if states where liberal majorities live choose to disarm themselves, why the fuss?

But it is not merely academic if patriots, in their zeal to defend the purity of the Second Amendment, wind up validating the perverted understanding of the 14th Amendment which has already stood the Bill of Rights on its head and which has become the primary weapon for eroding the Second Amendment in the federal context. If you dispute this, ask yourself how it came to be that Federal gun control laws are already on the books and more bills are being introduced in each succeeding Congress--with NRA lobbyists actually bowing to their inevitability and implicitly conceding their constitutionality!

Our strategy must be to insist on a literal reading of "shall not be infringed" in the federal context alone, and then work state by state to accomplish a constitutional mirroring everywhere (I have not checked but would guess that most states with large numbers of hunters and sportsmen already enjoy such mirroring). Any hint of validation for the perversion of incorporation merely strengthens those who would like to see the Second Amendment destroyed.

[rightofrush]

bttt

[ltlflwr]

He's running against incumbent Tom Davis in Virginia's 11th District. Here's another thread I posted yesterday.

[Ohioan]

Good luck in November!

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

[basil]

Thanks--

[Amerigomag]

Do any FREEPERS know if the legislative history of the second amendment sheds any light on this argument?

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.

[inquest]

At first glimpse, from a modern perspective, it may seem like what you're saying is correct, but it's a known fact that where the Constitution uses passive negative construction (IOW, such-and-such "shall not be" done), it was intended to only apply to the federal government - because it's a Constitution of the United States, that is, a Constitution whose primary purpose was to create a federal government and define its powers. In those instances where a state is prohibited from doing something, the Constitution specifies by saying "No State shall...." To see that fact brought into sharp relief, compare Sections 9 and 10 of Article I (for example, the parts about bills of attainder and ex post facto laws). You'll see what I mean.

[inquest]

I wish I lived in an area where I could vote for you. You have a (most unfortunately) unique respect for the Constitution, unlike any I've seen in any candidate. And if you don't win, I hope that you're at least able to convince large numbers of people of what the Constitution is all about. Do us proud, sir.

[Demidog]

You are correct that the "shall not be infringed" is not explicitly directed at Congress, but when the Bill of Rights was being adopted the drafters could have had no other governmental authority in mind.

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.

[Demidog]

In those instances where a state is prohibited from doing something, the Constitution specifies by saying "No State shall...."

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.

[ffrancone]

If you believe, as do I, that the constitution should be interpreted by the original intent of the framers (rather that with modern notions such as a living, breathing, constitution with pentumbras and emanations), then the legisative history leading up to that point is often very illuminating about the intent of the framers.

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.

[ffrancone]

Is it a "known fact" that follows only from the fact that the constitution was a constitution of the US? Or are there deliberations from the constitutional convention that suggest this to be the case?

[inquest]

I know that when the BOR was passed, Madison, among others, lamented the fact that it did not apply to the states as well, and hoped that followup amendments would be passed that would do so. And looking at the arguments raised by anti-federalists against ratifying the Constitution, and later urging that a bill of rights be added to it, it's clear that these people did not fear their own state governments, but we're extremely unnerved at the prospect of a powerful federal state. They demanded, and received, a bill of rights in order to keep that federal government in check. The last thing they wanted was a fedgov with the power to restrict the policies of individual states.

[inquest]

Yes, but these instances are prohibitions on states attempting to assume overlapping jurisdiction.

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.