2 Challenge Gun Cases, Citing Bush Policy

[Jim Choate]

On Sun, 2 Jun 2002, Steve Schear wrote:

> longer be said to be so implicit in the concept of ordered liberty as to be 
> fundamental. If it so held, the 2nd Amendment would remain applicable to 
> the Federal Government, but would not apply to the States, which would be 
> free to use their militia regulatory powers to regulate guns as they see fit.

States are not allowed to have militias in the US Consitution. They only
get to appoint the officers. Congress manages 'The Militia' (which stands
equal to the Army and Navy).

It's interesting that the Constitution directs the States to raise armed
forces independent of federal control in time of invasion. Why is that?
How are the States to arm themselves if the 2nd doesn't apply to the
individual?

A look at the Constitution provides the following:


       The Constitution & Gun Rights: It's bigger than the 2nd alone

This document is an ongoing project where I take comments and observations
from others and post their questions and my replies. Some of this material
is old and some is new. It is intended to demonstrate that when the
Constitution as a whole is applied to sensitive issues it in fact provides
clear direction on the limits and character of the relation between the the
three arms of the government of the United States; federal, state, and
individual. I assume that anyone commenting on this document is giving their
explicit permission to include them with my replies unless otherwise noted.
I would prefer that all discussion take place on the Cypherpunks public
mailing list. I will submit all my responces to submissions to that list. If
you don't wish to discuss this issue in a public forum please do not respond
to me. I have no interest in private discussion on this topic.

This country is going through a crisis of civil liberties and a fundamental
loss of faith in the tenets of democracy. It is becoming more fascist (ie
public management of private property) on a daily basis. In the near future
it could become completely socialist (ie public management of public
property and elimination of private property) in the name of the greater
good. The belief that the needs of the many outweigh the needs of the few or
the individual is in direct conflict with both the spirit and words of the
Constitution. Legislative, judicial, and executive branch decisions and
actions speak to this on a daily basis. One of the most controversial topics
is the private ownership of weapons and the duty of the government to
regulate the same. The current discussion on both sides is limited solely to
the 2nd Amendment. Unfortunately this is a stillborn position because it
misses fundamental issues and questions. To address those I have listed each
of the relevant sections of the Constitution and the Bill of Rights. Perusal
of these make it clear that the right of the individual to own and bear arms
with no interference or regulation is a fundamental right of every American.
This right is justified by a long history of abuse by political systems of
the individual as well as a continous sequence of physical assaults on the
citizenry.

It is worth making special note that the Presidential claim to executive
privilige regarding the use of military forces without Congressional
permission is unconstitutional (see Article II). The Constitution clearly
states the President is the commander in chief of the armed forces only
after they have been called into action. And only Congress may call them
into action unless it can not be convened. The President of the United
States is not in the chain of command of the military forces without
specific authorization from Congress. Until such time as that is given only
Congress has the authority to direct and organize military activities. This
means that the President may direct military forces only until Congress
convenes. At that point Congress must decide whether to agree to commit the
forces.

Amendment 2, 4, & 9 provide in and of themselves sufficient grounds to find
any federal involvement in the purchase, possession, or operation of a
weapon to be unconstitutional. One of the most specious argumenst in this
discussion is that 'the people' in the 2nd Amendment is not to be construed
as meaning the individual. However, it is clear from the Constitution itself
and other amendments, such as the 4th, that this simply is not so. The term
'the people' means that the decision regarding such issues is to be made at
the level of the individual. In other words whether a particular individual
agrees to participate is completely voluntary.


                   THE CONSTITUTION OF THE UNITED STATES

   We the people of the United States, in order to form a more perfect
   union, establish justice, insure domestic tranquility, provide for the
   common defense, 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.

[ Note that the intent of the Constitution, and by extension those who
  represent us, is to provide freedom of choice (i.e. liberty) for each
  individual (i.e. 'ourselves and our posterity'). This means that any
  claim that 'the people' does not refer to the individual and their
  right to make individual choices is specious and misdirected. See
  the DoI, in particular the first two paragraphs for an expansion of the
  'American' view of 'The People'. No, it's not law; It's better, it's
  first principle. It's the 'Authority' that 'The Law' rests own. The
  very bedrock of American society; We The People. ]

  Article I

   Section 8. The Congress shall have power to lay and collect taxes,
   duties, imposts and excises, to pay the debts and provide for the
   common defense and general welfare of the United States; but all
   duties, imposts and excises shall be uniform throughout the United
   States;

   To declare war, grant letters of marque and reprisal, and make rules
   concerning captures on land and water;

   To raise and support armies, but no appropriation of money to that use
   shall be for a longer term than two years;

   To provide and maintain a navy;

   To make rules for the government and regulation of the land and naval
   forces;

   To provide for calling forth the militia to execute the laws of the
   union, suppress insurrections and repel invasions;

[ Note it says 'the militia', not plural and definitely not state oriented
  since states are prohibited from raising or supporting troops. Note that
  it specificaly directs Congress and the President to use the Militia for
  internal issues only. The Army is for external issues only. No If, No
  And, No But. No 'National Interest', No Exceptions. ]

   To provide for organizing, arming, and disciplining, the militia, and
   for governing such part of them as may be employed in the service of
   the United States, reserving to the states respectively, the
   appointment of the officers, and the authority of training the militia
   according to the discipline prescribed by Congress;

[ This says Congress organizes, armes, and disciplines the militia - again
  nothing to do with the states and no implication of plurality. The only
  job the states have is appointing officers. One can argue over the wording
  of the training since it is ambigous. I interpet "..., reserving to the
  states repesctively, the appointment of the officers, .." as being a
  single clause and not carrying over to "... authority of training ...". ]

   No state shall, without the consent of Congress, lay any duty of
   tonnage, keep troops, or ships of war in time of peace, enter into any
   agreement or compact with another state, or with a foreign power, or
   engage in war, unless actually invaded, or in such imminent danger as
   will not admit of delay.

[ This last paragraph is of special importance. It directs the states to
  provide for their self defence during times of truly imminent danger.
  There is also the implication of immediate responce. Yet the state can
  not keep troops or even collect taxes to this end. This also excludes the
  Militia since it is under federal control and can't be used by the states
  without federal consent. In other words they are not to base their responce
  solely on state or federal employees. The  implication is that each state is
  directed to provide for individual firearms ownership, on a voluntary
  basis.

  It's also worth noting that if the US is actualy invaded and the federal
  forces are activated the states are still directed to raise forces
  independently of the federal forces, and these forces would be under
  state control and operated in parallel with federal forces. In addition
  this delegates the states to independant resistance even if the federal
  authorities surrender. It is a fundamental recognition of the states
  independence. [1] ]

  Article II

   Section 2. The President shall be commander in chief of the Army and
   Navy of the United States, and of the militia of the several states,
   when called into the actual service of the United States; he may
   require the opinion, in writing, of the principal officer in each of
   the executive departments, upon any subject relating to the duties of
   their respective offices, and he shall have power to grant reprieves
   and pardons for offenses against the United States, except in cases of
   impeachment.

[ This last paragraph describes how the President takes control of the
  military. It is only after Congress agrees to release the authority.
  Normal day to day training and patrol duties are responsible to Congress
  only. ]

  Article IV

   Section 4. The United States shall guarantee to every state in this
   union a republican form of government, and shall protect each of them
   against invasion; and on application of the legislature, or of the
   executive (when the legislature cannot be convened) against domestic
   violence.

[ Note this says that federal forces can not be employeed within a state
  without the explicit permission of the state government during periods of
  domestic violence. In other words "rioting in the streets" is not a
  sufficient condition for forced federal involvement through martial law.
  The state legislature is the prefered authority unless it can't be convened
  in time. In that case the state governor can make the decision but as soon as
  the state legislature is convened he's out of the picture. This means that
  states always have the option of refusing federal assisstance. This means the
  various forced tax and funds refusal threats of the federal government are
  unconstitutional. This means states have the option of opting out of any
  federal gun control regulations. As an extension, this guarantees States
  the right to leave the Union. ]

                             THE BILL OF RIGHTS

   The Conventions of a number of the States having, at the time of
   adopting the Constitution, expressed a desire, in order to prevent
   misconstruction or abuse of its powers, that further declaratory and
   restrictive clauses should be added, and as extending the ground of
   public confidence in the Government will best insure the beneficent
   ends of its institution;

[ Hmmmm, now what do you think they mean by that?...Government is 'Good'?
  I think not. ]

   Resolved, by the Senate and House of Representatives of the United
   States of America, in Congress assembled, two-thirds of both Houses
   concurring, that the following articles be proposed to the
   Legislatures of the several States, as amendments to the Constitution
   of the United States; all or any of which articles, when ratified by
   three-fourths of the said Legislatures, to be valid to all intents and
   purposes as part of the said Constitution, namely:

  Amendment II

   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.

[ This one really speaks for itself once you've understood the rest. They
  are actualy speaking of *two* seperate entities - the single federal
  Militia *and* the individual citizen. They are *not* one and the same. ]

  Amendment III

   No soldier shall, in time of peace be quartered in any house, without
   the consent of the owner, nor in time of war, but in a manner to be
   prescribed by law.

  Amendment IV

   The right of the people to be secure in their persons, houses, papers,
   and effects, against unreasonable searches and seizures, shall not be
   violated, and no warrants shall issue, but upon probable cause,
   supported by oath or affirmation, and particularly describing the
   place to be searched, and the persons or things to be seized.

[ Our current society has a problem with what is understood to be
  'reasonable'. This is a strong indication that we need to create a new
  amendment to better describe the interface, expectations, and limits
  of actions regarding state representatives and the individual. The only
  other option is to eliminate laws respecting consensual crimes such as
  individual drug use, abortion, etc.

  Arguments based on 'community standard' are inherently broken. It implies
  the community has some homogenious standard, there is certainly no
  indication of authority to sample the populate with respect to this
  question. The religious and free speech and press clauses
  prohibit it. It further prohibits laws and acts respecting law
  enforcement based on statistical averages, profiles, mass searches,
  bumper stickers, public statements not inciting something worse than
  domestic violence, etc. Note that this *does* give Congress the option of
  training the militia for operations involving nuclear, biological, or
  chemical attack for domestic use. (I believe that any such use must
  not allow weapons for other than personal defence to these federal
  forces. No tanks, bombs, missiles, etc.)

  You can't use an individuals beliefs as a basis for law. In that case, with
  no sample, the only question is would any citizen object to the
  behaviour? It is obvious the question must be answered in the negative
  since you have such an example at hand from the community. This effectively
  eliminates consensual crimes. If an activity does not cause physical harm
  to a person, their property, or a voluntary public trust it can't be made
  against the law at the federal level. (I don't believe a coersive public
  trust can exist under our Constitution. You can't punish a state or throw
  a citizen in jail because they object to participate in federal programs.
  Any federal programs.) ]

  Amendment IX

   The enumeration in the Constitution, of certain rights, shall not be
   construed to deny or disparage others retained by the people.

[ This one is really short and sweet. If anybody has a right then everybody
  has the right. There are no womens rights, gay rights, or minority rights;
  only human rights.

  This amendment prevents the government from even addressing what a persons
  rights are by the simple expedient that it prevents the federal or state
  government from even enumerating what they aren't. In other words unless
  the authority over some activity is proscribed in the Constitution the
  question of jurisdiction and decision are the individual states.

  It also means that the Supreme Court is prevented from using rulings that
  are of the enumerable type. In other words, simply because there isn't a
  directive in the Constitution is not sufficient reason to deny the
  individual the right of expression, or choice of execution. So arguments
  such as 'assissted suicide" isn't a right because there is no indication in
  the Constitution are specious and deny recognized fundamental individual
  rights in the 1st Amendment. So, in the case of gun control if there is a
  question at the federal level of jurisdiction (ie "What is meant by 'the
  people'?) the decision goes to the states and their individual constitutions.
  If it's not covererd in their individual constitutions then individuals in
  those states may make the decision on an individual basis. The Constitution
  is designed to fail-safe under questions of federal authority to the states
  or the individual. If Congress can't provide a delegate entry in the
  Constitution per the 10 th. it must suggest a constitutional amendment to
  the states. The current question of gun control has only two outcomes. Either
  individuals have their right to own guns recognized or the Congress and the
  state legislatures are required to mold an amendment to clarify the 2nd
  Amendment. The states can always stop federal aquisition of new
  authority at this point by simply refusing to put the amendment up for vote.
  At this point the states have a tacit admission of their supreme authority
  in such questions. ]

  Amendment X

   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.

[ This amendment severely limits what the federal level of authority covers.
  It requires the Congress to provide a delegate, one or more sentences,
  in the Constition for all laws (and I believe for all suggested bills as
  well). it further specifies that in questions of dispute the decision goes
  to the individual states and their republican governments (ie state
  constitution). If the indvidual states don't regulate the activity it is up
  to the individual to participate voluntarily.

  The United States of America is a balkanized collection if independant
  states who voluntarily give up limited authority to the federal level, they
  must explicitly agree to this to become a state. ]

The above document was submitted to the Cypherpunks Distributed Remailer, it
has been expanded since that time. As a result I received various replies.
My comments on the replies are included below along with quotes from the
replies to clarify context.