Posted on 08/07/2002 2:22:09 PM PDT by 45Auto
The illegality of most federal gun laws
The Bill of Rights, including the Second Amendment, was never intended by its Framers to be the primary safeguard of liberty. In the view of the Framers, the main protection of liberty was the structure of the Constitution itself. The separation of powers would prevent the rule by fiat which burdened most of Europe. And the legislative branch was granted only the power to legislate on specific, enumerated subjects (e.g., patents, bankruptcies, interstate commerce). Thus, Congress would have no power to censor speech, to suppress assemblies, to outlaw guns, or otherwise infringe rights.(749)
In the nineteenth century, St. George Tucker, William Rawle, and Timothy Farrar made precisely this point: the Second Amendment (like the First Amendment ) was in a sense superfluous, because Congress had no power to ban guns in the first place.(750) But in the late twentieth century, the structural safeguards of the body of the Constitution have been eliminated by judicial acquiescence to legislative and executive abuse of power. The federal power to regulate interstate commerce (buying and selling things across state lines) and the power to tax have been twisted into a general police power to legislate on almost any subject--including the power to ban the simple possession of firearms by various classes of persons.(751)
Thus, the exercise of power which can be found nowhere in the text of the Constitution has become commonplace: the President announces that gun store owners must post or distribute antigun statements in their stores.(752) Executive branch officials in the Bureau of Alcohol, Tobacco and Firearms (BATF) from time to time announce that an additional type of weapon has been subjected to near-prohibitory federal controls, thanks to BATF's reinterpretation of a statute or regulation.(753) The Federal Trade Commission, meanwhile, is seriously contemplating a request that it issue an order prohibiting gun manufacturers from mentioning self-defense in their advertising.(754)
All this is normal constitutional law in the late twentieth century, but the nineteenth century commentators bring us back to first principles and remind us that all this federal "law-making" about guns is not really law-making at all. It may have the appearance of law (written down in statute books or other official records), and there may be the force of compulsion behind the "laws," but the Framers and the nineteenth century had a word for the exercise of power which was never granted. That word was not "law." The word was "usurpation."
Toward the end of the twentieth century, the Supreme Court has begun to take some tentative steps towards restoring the structural safeguards of the main body of the Constitution.(755) The steps are hesitant, and there is great fear of upsetting precedent. But precedent which authorizes the violation of the text of the Constitution deserves no respect. Beginning in the 1930s, and with increasing confidence in subsequent decades, the Supreme Court began to abandon precedent from the 1900s, 1910s, and 1920s which had constricted the First Amendment. The Court moved forward by returning to the original First Amendment analysis, as articulated by, among others, St. George Tucker. Perhaps in the twenty-first century, the Court will continue to restore the structure of the Constitution, so that the invocation of the First, Second, or other Amendments will become less necessary, as the federal sphere of action shrinks to constitutional boundaries.
VIII. Conclusion
The historical record shows that, while the boundaries of the Second Amendment were the subject of vigorous discussion during the nineteenth century, the core meaning of the Amendment was well-settled: the Standard Model of the late twentieth century scholars was the Standard Model of the nineteenth century. For all practical purposes, it was the only model. Every known scholarly commentator who said anything about the Second Amendment, all six Supreme Court cases, and every judge except for one in Arkansas treated the Second Amendment as an individual right.
These Standard Model sources--like their twentieth century successors--disagreed about important features of the Second Amendment, including its application to the states and the types of arms whose possession is protected. Some analysts treated the Amendment in desultory fashion, while others celebrated it. Some cases and commentators saw the right as intended solely to allow resistance to oppressive government, while others saw the right as also encompassing defense against individual criminals, and not just criminal governments. But there is agreement on one fundamental: the Second Amendment recognizes a right of individual Americans to own guns and edged weapons suitable for resisting tyranny, and protects that right from infringement by the federal government. However confusing the Second Amendment may have become to Americans in the twentieth century, the core of the Amendment's meaning was readily apparent in the nineteenth century.
The last sentence should be taught in every law school and in every seminar that lawyers attend. Judges, especially higher level ones, should be reminded of this constantly by anyone who knows or meets them. Precedent is not holy. It is supposed to enshrine good law so that it doesn't have to be relitigated every time the same issue arises. As with computers: garbage in (i.e. bad law), garbage out (bad precedent).
The about statement is the most important sentence in the entire article.
The structure of the Constitution itself has been violated by many elected people, many times, and in many different ways. If the structure of the Constitution had been left alone the issue of the intent, purpose, and results of the Second Amendment would not even create an engaging discussion.
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