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Tuesday, 24 November, 2020

Shall not be infringed

Date: 24 December, 1999

By: Chief

Imagereemption, the supremacy clause and the Second Amendment, what a concept

That one little statement says a lot. 'Shall not' — or to put it another way, the described right that is to be free of infringement by an act or series of actions of the federal government. It is, in short, a preemption clause. One could take that clause and place it anywhere within the Bill of Rights of the Constitution and the results would be the same. An example would be of free speech. 'The right of free speech shall not be infringed'. As one can easily discern, the meaning is the same as the current First Amendment.

Yet what is the described right which shall be free of infringement? It is, of course, the right to keep and bear arms. Everyone knows that — then, who's right is it? The federal government? Governments of the several states? No. It is, as stated, the "right of the people." Thus, in order for a state to remain 'free', the citizens of that state or of the several states must have the right to keep and bear arms, so as to keep a free state — free.

If the people of a state are not free, it most certainly stands to reason that the state in which they reside is not free either. You can not have one and not the other. Hence, the preemption clause of the Second Amendment. A clause designed to perform a single, albeit, most important function, the function of ensuring that people can keep and bear arms — without infringement by the federal government.

But what of the several states? Are they not bound by the terms and conditions of the Constitution? Initially, when the Constitution was written and subsequently ratified, the answer was ... no. Our Constitution was written in order to advance a new kind of limited federal government. As such, it was the founders intent, in order to keep the several states independent and sovereign, that only powers specifically enumerated within the Constitution were available by and to the federal government. Indeed, the adoption of the Bill of Rights, originally written by Madison, was to act as an additional buffer between the federal government, the governments of the several states and the people. Hamilton opposed, quite extensively, the adoption of the Bill of Rights. Hamilton's reasoning, as contained in the Federalist was that if Congress was not granted the power to do something, it couldn't be done. Well, over the past 200 plus years, we have seen the Congress and the President usurp the Constitution on a very regular basis. So much for Hamilton's theory.

It was not until the Fourteenth Amendment was ratified that the protections contained within the Constitution and the Bill of Rights held the several state governments to the same constitutional standard as the federal government. It was Senator Jacob Meritt Howard of Michigan, who in 1866, while speaking before the U.S. Senate, debating the language of section I of the proposed Fourteenth Amendment said:

"[T]he personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people; the right to keep and to bear arms; the right to be exempted from the quartering of soldiers in a house without the consent of the owner; the right to be exempt from unreasonable searches and seizures"[; etc., through the Eighth Amendment].

Senator Howard concluded his remarks by stating:

"The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees."

From reading the transcript, it appeared that there was no dissent from this description of the clause provided by Senator Howard.

One would assume that that would be enough to prevent lawmakers, be they state or federal, from enacting laws which indeed infringe upon our right — the right of We the People — to keep and bear arms. However, as most of us have seen, that idea is simply an illusion. State and federal lawmakers apparently like nothing more than to make the possibility of keeping and bearing arms as difficult as possible. There are a great many reasons for this, however, it is beyond the scope of this story to discuss them.

The other item which should help slow the anti-gun crusaders down a bit is, again, contained within the Constitution. The supremacy clause. In short, the clause says:

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . .shall be the supreme Law of the Land.. . . "

So, armed, so-to-speak, with the Second Amendment's preemption clause and the supremacy clause, we should be able to knock down some of the gun control laws currently gathering dust on the shelves of law. Indeed, at the state level, we should be able to do even better. We have the interstate commerce clause which provides an exclusive power only to the Congress. As such, any state gun control law which includes a statement along the lines of 'imports into this state or causes to be imported into this state', runs afoul of the commerce clause. It is, by-and-large, just another arrow in our quiver. One should bear in mind, at the rate our rights are being plundered by governments, we will need every arrow we can latch hold of and when we fire we ought not to miss as we may not get a second chance.

The key element of this whole endeavor is not the Constitution, is not clauses or strategy. No, the key element is people. Most assuredly, it is We the People. If We the People do not want to get involved, then the entire idea and ideals of liberty, individual rights and protection are moot. Mr. Benjamin Franklin, speaking in support of the proposed Constitution said:

"I believe, further, that this is likely to be well administered for a course of years, and can only end in despotism, as other forms have done before it, when the people shall become so corrupted as to need despotic government, being incapable of any other."

I ask you, have we, as a people reached that point? Is what we have earned a 'despotic government'? Have we become that apathetic, that dependent on government largess that we are willing to toss aside our rights and liberties as so much rubbish?

I, for one, think not.

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