Federal ObserverWhat becomes of the limitations of the constitution, if the will of the people, thus inofficially promulgated, forms, for the time being, the supreme law, and the supreme exposition of the law? – Joseph Story (Commentaries on the Constitution (1822)
Currently, between the state Senate and Assembly, California has forty-seven pieces of pending legislation which will somehow affect California gun owners…FORTY SEVEN! For instance, AB 180 would establish an ammunition tax on top of the sales tax already applied; and then there is AB 760, another law which would impose a $.05 per round tax upon all ammo sales; AB 231 would require that gun owners obtain firearm liability insurance; AB 500 would extend the firearm purchase waiting period; and SB 108 would establish MANDATORY storage requirements for guns in the home. These are just a few of the laws currently making their way through the system in Sacramento, all of which are designed to further restrict our right to keep and bear arms.
On numerous occasions I have written my state representatives, as well as Governor Brown, asking them to oppose these measures. Not once have I gotten a response from them. It seems they are hell bent on doing whatever they deem is their idea of what is best for the public safety, and to hell with what the law says.
Unfortunately, a vast majority of the people of this state support these people in their efforts to do away with our right to keep and bear arms in California. It seems the people are simply unwilling, or unable, to learn the law, and to fight for what is an unalienable right. Instead, they prefer to spent their time watching sporting events, reality TV, or posting messages to social networking sites like Facebook.
I have no qualms with people taking some time to do whatever it is that they choose to do to entertain themselves…none whatsoever. But, when their doing so comes at the cost of neglecting to educate themselves, or causes them to sit idly by while their rights are taken from them by people whose solemn oaths declare that they will defend those rights, I do have a problem with it.
The things I am about to discuss may sound complicated to some, but if you are amongst those who find them to be so it may be because you are simply not used to thinking. They make perfect sense to me, but maybe that is because I spend more time thinking about them than I do watching TV or browsing the internet. All I’m asking you to do is to put aside your personal prejudices and examine these facts on their own merit. I’m sure that if they were attempting to pass the same type laws regarding your television viewing, or activities on the internet, you would be incensed. All I’m asking is that you try to open your eyes to the fact that your government, including the courts who are bound to apply the law, do not give a damn about your rights, and they will enforce whatever laws are passed regardless of their basis in legal doctrine. It then falls upon us, the people, to stand up for our rights, or else we may as well put the shackles on and submit to the slaves we truly are.
The Second Amendment states, “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.” It is the ONLY amendment which includes the words ‘shall not be infringed.’ Some people simply don’t understand what infringed means, so allow me to explain. Infringed, to use a simpler term, means to encroach upon, often in gradual steps. You might think that it is in our best interests, that the public safety demands that these actions be taken, but when it comes to rights, particularly the one protected by the Second Amendment, no law may be passed which encroaches upon that right…not by the federal government, nor by the state or local as well. You may disagree, so allow me to present my case.
The Constitution, like it or not, is the supreme law of the land. That is, it is law, binding upon all of us. As the Bill of Rights was ratified en masse, and became part and parcel of the Constitution, it too is law and is binding upon all. In 1943 Supreme Court Justice Robert H. Jackson stated, “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” Justice Jackson does not say that the Bill of Rights applies ONLY to the federal government, rather he states that the rights contained therein are legal principles, and therefore they apply across the board to all people, and all forms of government and that the courts are duty bound to uphold them.
Writing for the opinion of the court, Justice David Davis, in Ex parte Milligan (1866), states, “The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.”
The will of the people is not the law unless their will is in accordance to the dictates of the Constitution. The people may not dictate that rights be curtailed, or done away with completely, so that they may feel a bit safer and secure. Our rights predate our government and therefore the government, which is but a creature created by the people, cannot deprive us of them.
In 1922 Supreme Court Justice Joseph Story wrote an in depth commentary on the Constitution, aptly titled, Commentaries on the Constitution of the United States, wherein he states, “No man in a republican government can doubt, that the will of the people is, and ought to be, supreme. But it is the deliberate will of the people, evinced by their solemn acts, and not the momentary ebullitions [a sudden outbreak of violent emotion] of those, who act for the majority, for a day, or a month, or a year. The constitution is the will, the deliberate will, of the people. They have declared under what circumstances, and in what manner it shall be amended, and altered; and until a change is effected in the manner prescribed, it is declared, that it shall be the supreme law of the land, to which all persons, rulers, as well as citizens, must bow in obedience.”
Story even declared that the judges, those whose job it is to see that the law is administered correctly, are susceptible to the sudden will of the people, “The truth is, that, even with the most secure tenure of office, during good behaviour, the danger is not, that the judges will be too firm in resisting public opinion, and in defence of private rights or public liberties; but that they will be too ready to yield themselves to the passions, and politics, and prejudices of the day…“
However, of all the quotes relating to this topic, I believe the following by Judge Hugo Black sums it up the best, “Our Constitution was not written in the sands to be washed away by each wave of new judges blowing by each successive political wind.”
No, the Constitution means now what it meant when it was written over 200 years ago, and therefore the rights, and reasons for being included in the first ten amendments, are the same now as they were then. But, unfortunately, as long as the government, including the Supreme Court, is free to interpret the Constitution to mean what they want it to mean, and the people are ignorant regarding what our Founders intended it to mean, our rights will continue to come under attack. And, unfortunately as well, those whose job it is to enforce the law, will be enforcing laws which have business ever having become laws, and will therefore be enforcers for a tyrannical regime, be it state, local, or federal. In short, they will be jack booted thugs who enforce a tyrants will.
Many people I know seek to blame one political party or another for our governments lack of adherence to the limits imposed upon it by the Constitution. Then there are those who blame the Congress or the president himself. The more I have studied the matter I have channeled my anger towards the Supreme Court, as supposedly their word is final in determining all matters that fall under the Constitution. They could settle it all by ruling that the laws passed by government are, in fact unconstitutional, but instead they refuse to hear the case, or choose to rule in the narrowest scope possible, leaving loopholes big enough for a freight train to drive through.
The more I study their rulings, their interpretations of the law, the more I think Thomas Jefferson was right when he said, “The judiciary of the United States is the subtle corps of sappers and miners constantly working underground to undermine our Constitution from a co-ordinate of a general and special government to a general supreme one alone.”
I know I have asked this question before, but let me ask it again. If the Supreme Court Justices simply rule according to the law, and the law is unchanging, then why does it become such a big deal whether a Republican or a Democrat gets to select new justices to the court? The law should be impartial to politics and applied fairly and justly to all, so why the big deal whether a Democrat or a Republican gets to nominate justices?
Also, if the fundamental laws which the courts use to make their rulings are unchanging, then why do people fear that the Supreme Court may overturn rulings by previous courts, such as Roe v Wade? If the law itself is unchanging then how can a newer session of the court overturn a previous ruling, and if they do, which ruling is based upon law, and which one isn’t? Do you see what I’m getting at? I’m not voicing my opinion on, in this case, the matter of abortion, I am merely asking how can a ruling that was supposedly based upon the law, be overturned? And this is not the only instance I have found where the court has changed its mind on the issues. Let’s see how this applies to the Bill of Rights as well.
Before the Constitution was written, and for a time following afterwards, the people of this country were citizens of the state wherein they resided, there was no such thing as a United States Citizen. Therefore, when the Bill of Rights was ratified, the rights were written to enumerate, and protect certain rights of the citizens of the states. Our rights are inherent, and unalienable, and this is something many people can’t understand, or are unwilling to accept. Inherent is defined as; Existing in something as a permanent, essential, or characteristic attribute, while unalienable means; impossible to take away or give up. The best way to describe it so that you can understand the concept, is our rights are like our DNA, they are part of us. Since they are part of our existing, they cannot be taken from us, especially by any group of individuals who have been chosen by us for the purpose of protecting them.
Getting back to my point, the people who drafted, and ratified the Constitution, and subsequently the Bill of Rights, were citizens of the states they resided in. It wasn’t until the 14th Amendment was ratified that U.S. citizenship was mentioned anywhere in the Constitution. But it is not the citizenship portion of the 14th Amendment which concerns me now, it is the equal protection and due process clauses which do.
For those of you who may not know what I’m talking about, the 14th Amendment, Section 1, states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.” If you eliminate that first sentence then what remains are the due process and equal protection clauses.
If the Constitution is the Supreme law of the land, therefore the rights protected by the first ten amendments are as well…they are law, to be applied by the courts. If the 14th Amendment declares that no state shall deprive any person of life, liberty, or property without due process of law, and that they cannot deny us equal protection under the law, (i.e. the Constitution), then how is it that California can have 47 laws in the works which do just that? You see, this is why I despise the Supreme Court, and this may get a bit complicated for some of you.
Let me begin with a quote from Joseph Story’s Commentaries, “As the constitution is the supreme law of the land, in a conflict between that and the laws, either of congress, or of the states, it becomes the duty of the judiciary to follow that only, which is of paramount obligation.” Therefore the Constitution takes precedence over state laws that may be passed which are in conflict with it. Simple enough.
Did you know that in the 1833 case of Barron v Baltimore, the Supreme Court ruled that the 14th Amendment’s due process and equal protection clauses DID NOT apply to the states? But then, in 1925 the Supreme Court ruled that the equal protection and due process clauses DID apply, at least in regards to the First Amendment. In the case of Gitlow v New York the Court ruled that the right of free speech, protected by the First Amendment, applied to laws passed by the state governments as well.
However, in Palko v. Connecticut, (1937), the Court ruled “The Fourteenth Amendment does not guarantee against state action all that would be a violation of the original bill of rights (Amendments 1-VIII) if done by the Federal Government.”
What the Palko ruling did do is set a standard by which state laws were to be judged, and if found to be inconsistent with that standard, then they could be deemed unconstitutional. This, so-called, Palko test, prevents states from adopting laws which “…offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked fundamental…“
Since then, a majority of the Bill of Rights has been selectively incorporated to fall under the protection of the 14th Amendment, but unfortunately the Second Amendment has not. This is what gets me about the Court, certain states would not accept the Constitution as written UNLESS a bill of rights were included, protecting certain, as they called them, FUNDAMENTAL rights. Each of the rights protected by the first ten amendments are such that they were considered essential FUNDAMENTAL rights and therefore “…further declaratory and restrictive clauses…” were added to the Constitution to safeguard those rights. Do you not think that our Founders would have wanted to protect them from violation by the federal government, but leave them open to violation by the states? If so, stop reading now because you are an idiot!
But my point is that the court has flip flopped by first saying the equal protection and due process clauses did not apply to the states, then they selectively incorporated portions of the Bill of Rights to fall under that umbrella of protection. Well Supreme Court, which is it, are they protected, or aren’t they? If you can determine which of our rights are protected then you are, as Jefferson warned, a “...subtle corps of sappers and miners constantly working underground to undermine our Constitution…“
If these rights are fundamental, if they are inherent in all of us, if they are unalienable, then why is there such a diversity of laws regarding the right to keep and bear arms?
In 1822 the courts in Kentucky ruled on the case of Bliss vs. Commonwealth. In their ruling is the most concise and accurate thing I have seen regarding laws pertaining to the ownership and possession of firearms. The court ruled, “For, in principle, there is no difference between a law prohibiting the wearing of concealed arms, and a law forbidding the wearing such as are exposed; and if the former be unconstitutional, the latter must be so likewise. But it should not be forgotten, that it is not only a part of the right that is secured by the constitution; it is the right entire and complete, as it existed at the adoption of the constitution; and if any portion of that right be impaired, immaterial how small the part may be, and immaterial the order of time at which it be done, it is equally forbidden by the constitution.”
In 1846 the Georgia Supreme Court ruled, “The right of the people to keep and bear arms shall not be infringed.’ The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right.”
In 1859 the Texas Courts ruled, “The right of a citizen to bear arms, in lawful defense of himself or the State, is absolute. He does not derive it from the State government. It is one of the “high powers” delegated directly to the citizen, and `is excepted out of the general powers of government.’ A law cannot be passed to infringe upon or impair it, because it is above the law, and independent of the lawmaking power.” – Cockrum v. State
In 1878 the Arkansas Supreme Court ruled, “To prohibit a citizen from wearing or carrying a war arm … is an unwarranted restriction upon the constitutional right to keep and bear arms. If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of constitutional privilege.” – Wilson v State
In 1921 the North Carolina Supreme Court ruled, “The maintenance of the right to bear arms is a most essential one to every free people and should not be whittled down by technical constructions.” State vs. Kerner
Yet here we are in California with 47 bills which may become law which will further infringe upon the people’s right to keep and bear arms. It does not matter that the people want more gun laws, or if the government thinks more gun laws would do more for our safety and security, the Second Amendment prohibits ANY law which would infringe upon that right. And after all, California, New York, and Chicago all have very strict gun laws, but they have done absolutely NOTHING to prevent shootings.
Where is OUR equal protection? If you want the answer you will have to look within yourselves as the only equal protection we are going to get is if we stand together and fight for it.
I would like to close with one last quote from Joseph Story, and I dedicate this to everyone; from the people who demand more gun laws, to the legislators who enact them, to the law enforcement officers who enforce them, all the way to the courts which uphold them. Justice Story said, “It requires more than ordinary hardihood and audacity of character, to trample down principles, which our ancestors have consecrated with reverence; which we have imbibed in our early education; which recommend themselves to the judgment of the world by their truth and simplicity; and which are constantly placed before the eyes of the people, accompanied with the imposing force and solemnity of a constitutional sanction.”
May you all rot in hell for your treason!
June 10, 2013
Neal Ross
Student of history, politics, patriot and
staunch supporter of the 2nd Amendment
Send all comments to: bonsai@syix.com
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If you liked Neal’s latest column, maybe you’ll like his latest booklet: The Civil War: (The Truth You Have Not Been Told) AND don’t forget to pick up your copy of ROSS: Unmasked