ARE FEDERAL GUN LAWS CONSTITUTIONAL?
By Michael LeMieux
January 8, 2010
If “We the People” are the creators of the government, and the government is authorized arms, then in order for the people to maintain their position, in relation to the government, they too must be armed. If the servant government (servant of the people) has arms, and the people do not, then the roles are reversed for the people can not resist a government that has become tyrannical.
This same logic applies to self defense. If the law abiding citizen does not have the means to resist a lawless adversary, then the will of the adversary becomes the law. Our Congress had formally passed an “assault weapons” ban. The stated goal was to remove the arms used by gangs, drug smugglers, and extremists. How many of us really believe that anyone in any of the aforementioned groups, who owned an “assault weapon,” would get rid of those weapons, just because the Congress passed a law? However, many law abiding citizens did, in fact, give up their arms so as to remain “law abiding.” The end result is no change for the criminal element and a disarming of the citizen. This has happened, without exception, with EVERY gun law passed by Congress. In this regard, every gun law, by definition, aids the criminal and penalizes the law abiding citizen.
The Second Amendment, arguably the most contentious of all the Bill of Rights amendments, however, is the least tried in the Supreme Court. It simply 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.”
It may be a small amendment, but, it carries the weight and guarantee for all other rights. For without the capability of the people to defend themselves, to prepare as a militia, or to reign in a tyrannical government, we all become serfs and subjects.
There are those among us that would argue the collectivist position that the amendment pertained only to the Militia and not to individuals. The Supreme Court has spoken on the collective issue in U.S. v. Emerson, 46 F.Supp.2d 598 (N.D.Tex. 1999), in which it states: "Collective rights theorists argue that addition of the subordinate clause qualifies the rest of the amendment by placing a limitation on the people's right to bear arms. However, if the amendment truly meant what collective rights advocates propose, then the text would read "[a] well regulated Militia, being necessary to the security of a free State, the right of the States to keep and bear Arms, shall not be infringed." However, that is not what the framers of the amendment drafted. The plain language of the amendment, without attenuate inferences therefrom, shows that the function of the subordinate clause was not to qualify the right, but instead to show why it must be protected. The right exists independent of the existence of the militia. If this right were not protected, the existence of the militia, and consequently the security of the state, would be jeopardized." (Bold Added)
As the foregoing statement clearly shows, there is one aspect of this amendment which is based in the collective thought, and that is collective safety. The Second Amendment prohibited the government from infringing on an individuals right in order to protect a collective purpose. If the federal could disarm the populace, then the states would have no effective militia and no means to defend itself. This is why there is such a strong tie between the militia and the people.
Remember, the constitution and “Bill of Rights” are there to restrain the government; not the people. This was an instruction to the government to leave the peoples’ guns alone. They could not trespass on or encroach upon our right as citizens to own and bear arms. If we look at the enforcement of federal laws and the cost government has placed on the American people I think we must conclude that infringement has and is occurring. The federal government has the right to regulate its’ jurisdictions outside of the state jurisdiction; but I will show that the enforcement of those laws is where they have violated the Constitution.
In the early years of our nation, it was common sense and historically imperative that the people be armed. They were armed not only for self defense, but as defense against invasion from nefarious nations as well as from “ambitious and unprincipled rulers” who would look to remove their rights and to enslave the nation.
In general, Laws are made to codify certain unwanted behavior and to establish acceptable behavior in society. However, as soon as you transfer this mechanism to inanimate objects, this logic fails. To illustrate, I think we would all agree that a criminal who steals, rapes, or murders is doing wrong. The tools he may use in that action do not change the act. “Ah,” says the liberal/communist, “but you remove the ability for him to get the tool, now he cannot accomplish the act.” If only that were true. I look at the genocide that has taken place in African states; the mutilation by means of machete; where limbs were severed and people left to bleed to death. Whole villages where women were raped, breasts removed, children hacked to death. Evil will do what evil does by whatever means is at their disposal. To assume the morally bankrupt of our society would stop a behavior by solely passing a law against an instrument he may use in the commission of a heinous crime is naïve at best. Added to this is the undercurrent of black market supplies of weapons, around the world and here in America. The criminal does not obey laws, and he is prohibited to obtain weapons, yet he still gets them. Thus the net effect is to disarm the victims, making them unable to lawfully protect themselves.
The law abiding citizen is, by definition, not the problem. The problem is the criminal, because by definition, he does not obey the law. As importantly, is the fact that the government is treating ALL citizens by the standards of the criminal. For instance, a criminal uses a handgun in the commission of a robbery. Another criminal uses an ice-pick to commit the same crime. A third uses a baseball bat. With the logic of the gun control advocates the mere possession of a gun, an ice-pick, or a baseball bat should be outlawed. The root of the problem, however, is not the objects with which they perpetrate their crime; it is their willingness to commit the crime. The item used to aid that crime is merely the tool. And as every tool used to commit a crime has a peaceful use, outlawing the tool ONLY infringes on the person who would not use it for nefarious reasons.
What our nation needs are laws that punish criminal behavior and to stop criminalizing honest citizens who wish only to protect themselves and their families. Both the Department of Justice and the Bureau of Alcohol, Tobacco, and Firearms (ATF) statistics have shown that the majority of violent crimes are committed without firearms, and the vast majority of gun crimes are committed with guns that were illegally obtained, bypassing gun laws. So the net effect of gun control laws is to affect the law abiding citizen and has virtually no effect on the criminal element of our society.
The enactment of “firearms laws” is a relatively recent occurrence for the federal government. The Federal Firearms Act in 1934 was the first act by congress to regulate firearms. This act was based upon the perceived need to regulate the firearms industry and license the dealers, manufacturers, and gunsmiths within the firearms trade. It was based upon the Interstate Commerce Clause of the Constitution. Appropriately it was codified under Title 15 of the US Code – “Commerce and Trade”. The new “laws” under the Act included the creation of a Federal Firearms License (FFL), for anyone doing business in the firearm trade. One of the primary goals was to prohibit FFL holders from selling firearms to convicted felons. Requiring FFL holders to keep records of all firearms sales, and for the first time it made any alteration of firearm serial numbers a crime. Some felt this was an infringement on state jurisdiction by enacting a law that reached past the state boundary, in violation of the Constitution.
From 1934 to 1968 everything went along fairly well until the government decided to play a little shell game, and they switched the Firearms Act from Title 15 to Title 18. Title 18 is entitled “Crimes and Criminal Procedures.” Why would the government switch the code section from Title 15 to Title 18 after having been codified under Title 15 for thirty years? The only rational reason is jurisdictional obfuscation, or hiding what would otherwise be apparent as to the limits the government could act upon us, the citizens. You see, under Title 15, the government was within its rightful jurisdiction of “Commerce and Trade”. However, if you are bound by “Commerce and Trade”, you cannot enact laws on normal citizens who are not acting in the “trade.” Therefore, the government changed, with the stroke of a pen, their Constitutional powers from commerce to crime.
Shortly after Robert Kennedy’s assassination, in 1968, the “Gun Control Act” was passed. It was an attempt by the government to justify broad-sweeping firearms control. The finesse with which the government’s lawyers crafted and pushed this bill through can be seen right from the opening lines. The bill is entitled: “An Act to amend title 18, United States Code, to provide for better control of the interstate traffic in firearms.” Doesn’t that title sound allot like Chapter 15? In fact, even though there is much overlap between Title 15 and Title 18, Title 15 was never repealed.
This was done to provide better control of “interstate” traffic in firearms. However, the stated purpose of the act is as follows:
Title I – State Firearms Control Assistance
“Sec. 101. The Congress hereby declares that the purpose of this title is to provide support to Federal, State, and local law enforcement officials in their fight against crime and violence,”
Did you catch that? To support State, and local law enforcement! Where does the Constitution say anything about the federal government assisting law enforcement? Remember, the federal government cannot legally do anything that is not specifically enumerated by the Constitution. So where is its justification? It has none; any federal law that falls outside the enumerated powers of the Constitution is repugnant and is void. That does not stop the jack-booted thugs from kicking in your door and enforcing unjust and unconstitutional laws; it just makes them wrong with a gun.
I can not say this enough, the birth rights we have as American Citizens are higher than the Constitution. They exist by virtue of our creation and are bestowed at birth and these rights cannot be taken by any government, unless we give them away. The Second Amendment is paramount to all other rights, because without this right, we cannot defend the other rights. I have come to understand that those without a means of defense become victims to those who will force their will upon them. I have personally seen this in Somalia, Pakistan, Kuwait, the Philippines, and Afghanistan. In most cases, the only reason we received respect from the enemy was because we had the means to remove them from the face of the earth. Make no mistake, if it were not for the Second Amendment, this nation would not be here today. Our future still depends on the willingness of “We the People” to stand up and fight to keep this right.
It is a proven axiom that a criminal will not try to commit a crime while a police officer is present. Thus the saying “There is never a policeman around when you need him.” There are those who want a society where there are no guns. A society where a woman can walk down a street at night without fear of molestation. Where drugs, gangs, corruption, and evil no longer exists. There is such a place, but it only exists in the stories of Hollywood. The cold reality is that evil does exist and we must protect ourselves and our families against that evil.
So, who is responsible for our protection? Is it the government, the state, the local police? It may surprise you to learn that none of these is the correct answer. Time and time again the courts have ruled, and those rulings have been upheld, that there is no requirement for any level of government to guarantee our individual protection. In this nation, the policy of policing is that of “general” peace and order; and no one person or group can have any expectation of individual protection.
To illustrate this I would like to present the following case that illustrates this position:
In Bowers v. Devito, 686 F.2d 616 (7th Cir. 1982) the courts ruled: “There is no constitutional right to be protected by the state against being murdered by criminals or madmen. It is monstrous if the state fails to protect its residents against such predators but it does not violate the due process clause of the Fourteenth Amendment, or, we suppose, any other provision of the Constitution. The Constitution is a charter of negative liberties; it tells the state to let the people alone; it does not require the federal government or the state to provide services, even so elementary a service as maintaining law and order.” (Emphasis added)
There are literally hundreds of cases that say exactly the same thing. In the liberal world, I constantly hear that the police are trained to protect the innocent. Quite often this happens solely because they are out on the streets looking for bad guys. Odds are, eventually they will run into a crime in progress and take action. The police are there to bring criminals to justice, which is what they get paid for. However, in order for one to be deemed a criminal they must first perpetrate a crime. Only then can the police take action. You and you alone have the primary responsibility for your protection and safety. By law, someone who pays another to commit a crime is just as guilty as if he committed the crime himself. In my estimation, someone who pays another for protection, and is unwilling to take responsibility for their own protection, is guilty of cowardice. Willingness does not equate to capability. Many people are willing to protect themselves, but do not have the capability. If you are not willing to fight, or even kill to protect your own life or the lives of your family, then you cannot ask someone else to do it for you.
The Constitution states that the Second Amendment “shall not be infringed.” How many laws does it take before it is considered infringed? 500? 5,000? 20,000? That’s about how many laws we have on the books today, over twenty thousand. Not infringed means exactly that; leave it alone.
The United States was built and survived because of private ownership of arms. Many gun haters cannot abide hearing this; and they manage to forget, or they don’t understand the history that brought us through the oppression of the English Kings. One of the sparks to the war of independence was the Kings’ mandate to disarm the people. Our forefathers included in the Constitution the guarantee that the people would never be disarmed again.
The firearm is a tool, nothing more nothing less. It has no powers but what the person wielding it provides. If that person be evil, then evil may be produced. If that person be good, then the good man has a means by which he may protect himself and his family from the evil man. If a man be prone to commit assault or even murder, what does he care about gun laws? Will this evil doer decide to not use a gun when he robs, rapes, abducts children, or kills because there is a law stating he may not carry a gun? Of course not! The evil person cares not for the law, therefore gun laws ONLY affect the law abiding citizen, not the criminal. But it is my belief the lawmakers know this. The excuse, of fighting crime, is only the “reason” to pass the law not the desired effect. The desired effect is removal of honest gun ownership. Once this is accomplished the country is then helpless against the rulers of our nation. Another means of checks and balances, the final means, will be abolished.
The last seventy years have been a continual neutering of the American patriot. When all is said and done, the wresting of our God-given rights from the “communist-liberal left and the power-hungry government bureaucrats” may come down to one thing; our Second Amendment Right.
© 2010 Michael LeMieux - All Rights Reserved
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Michael LeMieux was born in Midwest City, Oklahoma in 1956 and graduated from Weber State University in Utah with a degree in Computer Science. He served in both the US Navy and US Army (Active duty and National Guard) and trained in multiple intelligence disciplines and was a qualified paratrooper. He served with the 19th Special Forces Group, while in the National Guard, as a Special Forces tactical intelligence team member. He served tours to Kuwait and Afghanistan where he received the Purple Heart for injuries received in combat.
Mr. LeMieux left military duty at the end of 2005 after being medically discharged with over 19 years of combined military experience. He currently works as an intelligence contractor to the US government.
Michael is a strict constitutionalist who believes in interpreting the constitution by the original intent of the founding fathers. His research has led him to the conclusion that the republic founded by the Constitution is no longer honored by our government. That those who rule America today are doing so with the interest of the federal government in mind and not the Citizens. Michael believes that all three branches of government have strayed far from the checks and balances built into the Constitution and they have failed the American people. A clear example is the Second Amendment, which the Supreme Court and the founders have all said was an individual right and could not be "infringed" upon, now has more than 20,000 state and federal laws regulating every aspect of the individuals right, a definite infringement. He has traveled around the world living in 14 States of the Union including Hawaii, and visited (for various lengths of time) in Spain, Afghanistan, Kuwait, Korea, Scotland, Pakistan, Mauritius, Somalia, Diego Garcia, Australia, Philippines, England, Italy, Germany, and Puerto Rico.
Michael now lives in Nebraska with his wife, two of his three children, Mother-in-Law and grandchild. His hobbies include shooting, wood-working, writing, amateur inventor and scuba diving when he can find the time.