Reader AC writes . . .
Gun control laws in America would not even be an issue today if only we had someone with the brains and the balls to argue the real and the only valid issue that matters in a court case. Tat issue the question of lawful authority.
When it comes to anti-gun legislation, even acts of the Congress are unlawful and violate the rule of law because under our system, when a contract document is amended the amendment permanently alters and changes the original document. Our Constitution is in fact a covenant and as such, the same rules of contract law apply. An amendment overrides and supersedes everything that came before it.
For the government to rely on any part of the original document such as the so-called supremacy clause and the commerce clause for their grant of authority to enact anti-gun legislation, this clearly goes against the basic and accepted principle in law that the provisions and the directives of the amendment override and supersede the original document. Furthermore, in cases of conflict between what is contained in the original and in the amendment, it is always the terms, conditions, provisions and the directives of the amendment that must and shall prevail.
Understand that courts all across the country rule every day on contract matters in just this way. With that in mind, there is a very clear command directive in the Second Amendment that overrides and supersedes everything and anything that the government may attempt to rely upon for their claim of authority to regulate the firearms industry.
Because only a new amendment can change the provisions of an existing amendment, until such time as a new amendment is passed that specifically addresses gun rights, the Second Amendment stands unaltered and as originally written with its original meaning and with the force of its command directive.
It very clearly states, “…the Right of the people to keep and bear arms Shall NOT be infringed.” In fact, the use of the word “SHALL” or in the negative, “SHALL NOT” implies mandatory and compulsory and thereby removes and eliminates all discretion and makes clear that it is not subject to any reinterpretation of its very clear meaning.
Our history also supports this notion. In one clear example it took passing the 18th Amendment to ban the sale of alcohol in order to bring about the era of Prohibition. Once that mistake was realized, it then took passing another amendment (the 21st Amendment) in order to put an end to Prohibition.
An act passed by the Congress or a presidential executive order would be wholly insufficient to have accomplished this task as the 18th Amendment had made Prohibition the supreme law of the land. The Constitution is very clear that only via the constitutional amendment process can the Constitution itself be changed. Our government officials often speak of the rule of law, but they rarely actually adhere to it.
There is so much more that can be stated in support of making this argument that would also include several U.S. Supreme Court cases and the writings and quotes left behind by our Founding Fathers, including the Preamble to the Bill of Rights which states the very reason for incorporating these first ten amendments to our Constitution. But we instead argue over immaterial and less significant points.
Some years ago someone very wise gave me some advice: never argue the amount. What does that mean? Well if you were, for example, to receive a bill demanding that you pay the sum of say $10,000 for something you didn’t buy, would you argue over the amount of the bill or refuse to pay it entirely?
If you do fall into the trap of arguing over the amount of the bill, that would be an admission that you do in fact owe some amount and the other side would then simply only have to begin to negotiate with you in order to see how much they could extract from you. (This, by the way, this is how the IRS operates).
The correct thing to do in such a case would be to disavow any and all liability and to refuse to pay one cent. If the other party persists, make them produce evidence in support of their claim.
In the case of our rights that have been acknowledged and recognized as being God-given, rights we are all born with and that are also protected under the Constitution, we always seem to be arguing and fighting over the scope of what these rights are what some believe are more appropriate modern interpretations. In other words, we are constantly “arguing over the amount.”
As a result what we now have are watered down versions of these rights that have been settled upon by negotiation and then further re-negotiated over time.
Consider all of the idiotic and ridiculous anti-gun laws that prohibit or restrict certain gun features such as barrel length, pistol grips, collapsible stocks, magazine capacity and a laundry list of others that in no way make a gun any more dangerous. A gun is only a tool and the only thing that makes any tool dangerous is the person that is using it.
As Alan Ladd famously said in the 1953 classic film SHANE – “A gun is a tool, Marian; no better or no worse than any other tool: an axe, a shovel or anything. A gun is as good or as bad as the man using it.”
Everyone seems to always ignore the obvious truth of why we have a Second Amendment. The Founders included it for the people (the people, not the government) to be able to defend the nation and the Constitution against enemies foreign and domestic. In other words, when needed, against a tyrannical government.
There is absolutely NO requirement in the Second Amendment for guns to have a so-called “sporting purpose.” To even raise that as an issue is beyond ridiculous. The only sporting purpose the Founding Fathers might have considered incorporating in the Second Amendment would have been the shooting of tyrants.
In short, we have been fighting the wrong fight. We shouldn’t accept any infringement and instead challenge the very authority gun controllers and politicians claim to have to enact such limits on the free exercise of the right to keep and bear arms. Just as some court cases can be very quickly won when challenging the jurisdiction so that the court is left with no other choice but to throw the case out, we need to challenge the very authority the government claims to have to legislate away more of Americans’ gun rights…and dispel that myth of authority once and for all.