Skip to comments.The Legitimacy of State Weapon Statutes WRT the State's Constitution (SD)
Posted on 04/21/2012 8:58:05 AM PDT by OneWingedShark
The Constitution of South Dakota says, in Section 24 of Article VI, the following: The right of the citizens to bear arms in defense of themselves and the state shall not be denied.
The language is plain, with perhaps the only confusion being that of the word shall. The word itself is nearly synonymous with will, except that when used in a sentence in the 2ND or 3RD person it implies authority, command, threat, promise, determination, and/or inevitability.
By its usage in the above cited constitutional section its meaning can be discerned obviously as being a command, and being constitutional, must have authority. Further, a constitution without sureness would be utterly useless. Therefore, it must also imply promise.
Given that the purpose of a constitution is to set forward the fundamental principals according to which an organization a nation, state, corporation, etc. is to be governed, it cannot be sound to allow any contrary authoritative act to stand; for if it should stand, then all that will be built upon it will, of necessity, erode the foundation of that organization.
Such is the case of SDCL 22-14, which prohibits (denies) the bearing of weapons into various state buildings. As an example, the following section says:
There, on its very face, is a contradiction to the States Constitution; the seemingly benign and common sense restriction is nothing less than the complete disregard of the State Constitution in more ways than the merely obvious. I will now show them and their implications.
First, let us consider the statutes themselves. Statutes are normal legislative acts and therefore not allowed to modify the Constitution. If they were so allowed, then the Constitution could neither restrict legislative action such as Article 3, Section 23 nor guarantee anything such as rights or the tolerances mentioned in the 2ND paragraph of Article 22. The entirety of Article 6 of South Dakotas Constitution is therefore testament against such a notion, but Article 23 thereof explicitly states such in Section 3.
Second, such statutes degrade the opinion of all those involved in jurisprudence from the patrolman to the district attorney to the Judicial branch of the government itself. If a policeman were to enforce such a law, then he violates his oath to the Constitution; if he does not then he could be gainsaid as one who does not respect the law. The district Attorney is likewise shamed, but there is the added temptation of arbitrary, and likely political, prosecutions for violations. Penultimately, such statutes as the example are Machiavellian; the United States Supreme Court has repeatedly ruled that the police have no affirmative obligation to provide for the safety of [any] particular private citizen, yet private citizens (not accused of any crime) are commonly compelled under legal penalty to appear in the courthouse, for jury duty. Lastly, the Judiciary is shamed for allowing such to exist, for the Judiciarys whole point is to perform Justice, by upholding the law. (As the first point, and subsequent points will show, the statutes in question are not valid laws.)
Third, the statutes are written such that there are exceptions to them by a particular class of individual: the law enforcement officer (or at the least, agent of the government). This is particularly disturbing in the relationship it creates between the ordinary-citizen and the official, Terry Pratchetts Snuff gives an internal monologue that accurately describes it: [ ] he hated thinking of them as civilians. What was a policeman, if not a civilian with a uniform and a badge? But they tended to use the term these days as a way of describing people who were not policemen. It was a very dangerous habit: once policemen stopped being civilians the only other thing they could be was soldiers. This is not such a far-fetched conclusion, especially given that there are multiple exceptions in federal law specifically for Law Enforcement Officers in things like possessing and using fully automatic weapons, but even moreso when one considers looking at them as a privileged class which enjoys qualified immunity from prosecutions, that is to say that by tradition the Nurmburg defense of I was just following orders actually works! Such a defense would not be tolerated even in our soldiers, so why should it be accepted from our policemen? Possibly because there is one other thing that a non-civilian policeman could be, in a slight variation of the words attributed to King Louis XIV: I am the law. and in a nation where the police are the law, there is no such thing as police brutality, only a harsh law; there is no such thing as corruption via bribe, only the payments of fines as required by the law; there is no need for judgment by ones peers, for the law has already determined ones guilt or innocence; and last, there is no peace because there is no justice, for the law is entirely subjective and varies not only with location but with its own internal mood or whim or health. So, then, we see that these exceptions, taken as a whole, indicate there is in the law a distinction, a de facto class, which is prohibited by section 18 of Article 6.
Fourth, the exceptions mentioned in the third item is the granting of immunities from those laws. Article 3, Section 23, says The legislature is prohibited from enacting any private or special laws in the following cases: [
] 9. Granting to an individual, association or corporation any special or exclusive privilege, immunity, or franchise whatever. [
] So we immediately see the same laws from the previous point that can be taken as a reinforcement of a de facto special class of citizen would also violate this if it said individuals instead of individual. There are, however, two other words that bear investigation before we eliminate the offenses of the previous point as irrelevant to this: association and corporation. The Law Enforcement Officers, the District Attorneys, and the judges obviously make up an association that we commonly refer to as the justice system. Also, individually the United States (federal) and the State of South Dakota are both corporations and, taken together, an association by the common definition:
The phrases state of South Dakota and South Dakota map nicely to definitions 1 and 3, but they can indeed be exchanged indicating that South Dakota is indeed a corporation under the common-language definition of the word; indeed the common definitions must be considered when considering a constitution [in the cases of States and Nations] for the very reason that the constitutions are put forth by the cumulative collection of the persons of the state, the people as a whole. As the first six words of the States Constitution say, We, the people of South Dakota, it is beyond ludicrous to assert that the document governing the institution of government by the average person is inaccessible to the average person. It is exactly saying that the writer doesnt know what he wrote and needs someone to tell him what it means. An any case, these associations/corporations are indeed granted special privileges and immunities, which violated the state constitution.
Fifth, the Constitution of the United States is acknowledged as the supreme law of the land in the final sentence of Article 6, Section 26, which reads: And the state of South Dakota is an inseparable part of the American Union and the Constitution of the United States is the supreme law of the land. This means that the Second Amendment applies and, because it is written in the passive voice, it is the infringement itself upon the right to keep and bear arms that is prohibited to all levels of government. Furthermore, it also means that the second sentence of the first section of the Fourteenth Amendment is applicable; that sentence reads: 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. Obviously the liberty of being armed, which is the subject of this piece, is being violated and it has been done so without due process of law, as proved in the second point.
To recapitulate, the statutes in question:
I'd appreciate comments, criticisms, and suggestions.
Pre-Constitution Practices and Several Precedent State Constitutions
THE SECOND AMENDMENT DID NOT COME INTO BEING OUT OF THIN AIR- THE SEVERAL STATES EXISTED FIRST BEFORE THE UNITED STATES EXISTED-
The States Constitutional Rights Came First before the USA or the U.S. Constitution Existed
The GUN RIGHTS advocates should file also for states` rights in Obama`s and other states`violation of their respective state constitutions which have more explicit right-to-bear-arms- freedom clauses language than the U.S. Constitution and have precedent used as the basis for the Second Amendment.
The Second Amendment appears merely to have synopsized the explicit language in the States` Constitutions, because that is where the 13 original colonies/states spelled out their states` citizens` constitutional rights and they knew that this is where the Second Amendment originated.
The Second Amendment did not originate out of thin air but was born out of the states` constitutions` explicit right-to-bears-arms freedom clauses language.
`XL. And whereas it is of the utmost importance to the safety of every State that it should always be in a condition of defence; and it is the duty of EVERY MAN who enjoys the protection of society to be prepared and willing to defend it; this convention therefore, in the name and by the authority of the good people of this State, doth ordain, determine, and declare that the militia of this State, at all times hereafter, as well in peace as in war, shall be armed and disciplined, and in readiness for service.`
www.nhinet.org/ccs/docs/ny-1777.htm [NY 1777 Constitution] (my caps)
`Article 16th. Right to bear arms; standing armies; military power subordinate to civil
That the people have a right to bear arms for the defence of themselves and the State
§ 59. Militia The inhabitants of this State shall be trained and armed for its defense, under such regulations, restrictions, and exceptions, as Congress, agreeably to the Constitution of the United States, and the Legislature of this State, shall direct.`
New Hampshire Constitution of 1784
`PART I. - THE BILL OF RIGHTS
II. All men have certain natural, essential, and inherent rights. among which are --the enjoying and defending life and liberty --acquiring, possessing and protecting property --and in a word, of seeking and obtaining happiness`
Maine Constitution 1820
`Keep and bear arms Section 16. To keep and bear arms. Every citizen has a right to keep and bear arms and this right shall never be questioned.`
Massachusetts Constitution 1780
`Art. XVII. The people have a right to keep and to bear arms for the common defence.`
`Sec. 17. Every citizen has a right to bear arms in defence of himself and the state` ` 8 May 1792
``Act of Congress requiring every citizen between 18 and 45 years of age to be enrolled in the militia, and armed and equipped at his own cost.``
-Harper`s Book of Facts, # 9 of 34, search entry ``citizen`` www.books.google.com
North Carolina Constitution 1776
17. That the people have a right to bear arms, for the defense of the State; and as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power. =======================
Pennsylvania Constitution 1776 XIII. That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.
Not only that but the 1794 treaties between NY State and the Iroquois and federal approval of same give the Mohawks and Senecas and the othe tribes, Onondagas, etc, the right to bear arms on the reservation forever.
So my cousins with AK-47`s on Akwesasne. have more gun rights than I do?
In the legal world, there is no ambiguity about the understanding of this word. It is the most definitive form, similar to the effect of “must”.
>In the legal world, there is no ambiguity about the understanding of this word. It is the most definitive form, similar to the effect of must.
This, my good sir, is precisely why I think to myself “What the f—” when I read the statute and the [State] Constitution. Things could not be clearer that the statute does indeed deny the right to bear arms, and therefore must be illegitimate. How can the definitive form be so ignored?
>Not only that but the 1794 treaties between NY State and the Iroquois and federal approval of same give the Mohawks and Senecas and the othe tribes, Onondagas, etc, the right to bear arms on the reservation forever.
I wonder if any of the tribes would be willing to set up firearms (and ammo) manufacturing facilities.
thanks for the ping Sir Shark...how about filing a fed suit for conspiracy to deprive Rights at the same time ???
i noted a couple small gram errors i believe, but the straightforward *facts* are all excellent...
>>I’m thinking of taking this to a lawyer and saying: Mr. Lawyer, if you please, translate this to legalese.
>thanks for the ping Sir Shark...
Thank you for being interested in my “tilting at windmills.”
>how about filing a fed suit for conspiracy to deprive Rights at the same time ???
An interesting idea; I do, however, ascribe to the notion that things should be addressed at the closest (usually lowest) level possible.
I don’t know if doing so would impact a state-level filing first; if it does impact it, then how?
>i noted a couple small gram errors i believe,
Where? I’d like to have things spiffed up before printing a hardcopy and marching to the lawyer.
>but the straightforward *facts* are all excellent...
Thank you; John Adams had it right when he said that facts are stubborn things.
The state law does not deny the right to bear arms, generally, but only in certain venues. Heh. For those with offices in “state buildings”, I can understand why they want to be “secure” in their offices. However, it IS a state office, and we should be able to carry there as well. There may be a few employees capped from time to time, but that may actually improve government “service”.
>The state law does not deny the right to bear arms, generally, but only in certain venues.
Indeed, but the denial of the right is still a denial; that denial is itself prohibited.
>For those with offices in state buildings, I can understand why they want to be secure in their offices. However, it IS a state office, and we should be able to carry there as well. There may be a few employees capped from time to time, but that may actually improve government service.
Depending on your view it could itself be a service. there are, IMO, too many in government who seem to think that their position makes them rather untouchable. (And, with such as Fast and furious, they seem to be in the process of being proved right.) When the government becomes injuroud to the rights of the people, the people themselves have the right/obligation to “alter or abolish” the government.
There's Two Choices... Stand Up and Be Counted ... Or Line Up and Be Numbered .
>>I’m thinking of taking this to a lawyer and saying: Mr. Lawyer, if you please, translate this to legalese.
>There’s Two Choices... Stand Up and Be Counted ... Or Line Up and Be Numbered .
I’m trying to do/be the former; but sometimes I think I’ll wake up someday to find I was in the latter.
You are preaching to the choir! ;-)
I thought you might be interested in this, if only for the “argumentative” nature (i.e. blasting at State infringements on their own Constitutions).
Forgot to ping you.
I actually see a lot of hope [countering police-statism] because of the broad nature of the above.
Consider what it would be like if the government said that 1) only citizens were afforded protection under the federal Constitution, and 2) that say, refusing to talk to the police or demanding a warrant or disagreeing with a government-endorsed position were grounds for terminating one’s ‘citizenship status.’
It is things like “every person” which will afford SOME manner of legal protection, though to be honest at *that* point it becomes almost moot.
Good news on this front; though not a whole lot.
After making several inquiries as to where the authority to post “No Unauthorized Weapons,” and being redirected to the city’s lawyer’s office and positing my questions (which weren’t ever answered, just a “we’ll get back to you”) I noticed that the sign was taken down when I went to pay my electric bill.
I guess my inquisition triggered an “Oh, crap, we could be in BIG trouble if someone pushes us on this!” reaction in the legal-office.
A minor victory, but I’ll take it.
Great job! We simply behave like ants, and swarm them one at a time, wherever. Eventually, they cannot stand against us!
A minor victory, but Ill take it.
well done Sir !!!...only 999 more cuts to bleed the beast...