By The People

There are fundamental flaws in how American government operates today,
contrary to the Constitution and the vision of a representative republican form of governance.
I intend doing something about it: by educating and informing others who
are not even aware of the dangers.

Tuesday, June 14, 2016

What about Reason and Law

The un-elected Governor, Kate Brown, of Oregon has stated her intent to enact by Executive Order a Ban on some types of firearms, mainly rifles and carbines. The executive action can only be understood as a restriction or infringement of our unalienable right to self defense and defense against deadly force toward others.

"And that said Constitution be never construed to authorize Congress to infringe…or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms."

~ Sam Adams ~

I see where the Bush administration has initially indicated support for extending the Clinton-Feinstein-Schumer ban on scores of semi-automatic rifles and on magazines holding more than 10 rounds of ammunition that the Clinton Administration imposed on America back in 1994.  I am seriously disappointed in that decision if it holds.

Laws against violent crimes such as murder, robbery or assault are already on the books and do not require a gun to be used in their commission to be considered criminal acts.  The only thing any criminal needs to carry out such deviant behavior is some means of providing a force advantage over the victim and he could use almost anything for that.

A criminal can just as easily kill or rob with a knife, a baseball bat or his bare fists so what difference does it make which gizmo is used to provide that force advantage over the victim—none whatsoever to my way of thinking.  It’s the act itself that makes such behavior a crime, not the tool used.

Laws are needed to deal with harmful deeds inflicted on people by the misfits of society—those whose behavior deviates from the accepted norm and thus becomes injurious to others.  They are needed to deal with the behavior that inflicts such harm —nothing more complicated than that. 

Crime is the result of socially unacceptable behavior and it is the behavior that determines the crime.  The operative word here is behavior not the implement used by some degenerate. A criminal can choke a person to death with his own mother’s apron strings as well as shoot him.  Is the victim any more dead if a gun is used or is the criminal any guiltier?  I think not. 

There are already laws punishing deviant behavior therefore to my way of thinking, laws pertaining specifically to guns are laws focused on objects incapable of behavior.  A mother’s apron strings can be just as deadly as a gun if the one exhibiting such criminal behavior chooses to use them in that way so should we have laws governing apron strings? Gun-centric laws only restrict, limit, prevent—infringe—upon your right to keep and bear 
arms and do nothing to address violent behavior.

Those 20,000 gun specific laws such as limited magazine capacity, rate of fire, barrel length, registration, licensing, waiting periods, and concealed carry without government permission as examples, do nothing but limit your right of access to guns—infringements upon your rights.  Such is not the mark of a free society.  What harm is there in a 15 round magazine or carrying a gun under your coat?  It’s when that gun is used to harm others that the crime is committed and it’s the criminal behavior that is the crime not the gun.  The gun is obviously incapable of behaving in any way whatsoever—but we all know that don’t we? 

Keep in mind the Second Amendment states, “…the right of the people to keep and bear arms, shall not be infringed.”  There are no qualifiers to that statement, as “…shall not be infringed except for…” and you fill in the blank with any of those 20,000 gun laws.

If I could ask the founders their opinion on this question, I would ask if felons, the insane or the immature should be denied access to firearms.  Felons have proven to be unfit members of society and by their own choices have surrendered their rights to fully participate in our society. The insane are not responsible members of society for medical reasons.  The immature, let’s say those that do not know the difference between life and death, and that do not know the difference between right and wrong, and have had no firearms training for the sake of argument, are not yet fully responsible because they are still in the formative years of their lives.

So call me whatever you like but the laws against murder, robbery, and assault exist in Common Law and should be seriously enforced with harsh punishment for violating them—the type of weapon used is entirely irrelevant to the behavior involved.  We should address the behavior of the criminal and leave the law abiding among the rest of us alone. Our right to keep and bear arms is an unalienable right and not a Government granted privileged to be assigned or removed at the whim of anyone. 

Of course, such an approach would allow the general population to be fully armed and capable of resisting an out-of-control government if need be, so maybe that wouldn’t do after all—perhaps that thought just scares the living daylights out of some politicians.  Might that fear then be the genesis of the 20,000?  Remember the words of Thomas Jefferson, 

“When citizens fear their government, you have tyranny; when the government fears its citizens, you have freedom.”

The Founder’s intent underlying the Second Amendment is easy to understand. 
It is fair to say the Founders and Framers obvious intent was to ensure that an individual’s right to keep and bear arms was never threatened or infringed by any government action.

So what have the courts said over the years about such a “radical concept?”  Many times we’re told by anti-gun elements that the courts have maintained no individual right to keep and bear arms exists and pro-gun advocates are just too stupid to understand the intricacies of constitutional law.

Have the courts universally denounced the individual’s right to keep and bear arms over the past 200 years and are you really too stupid to read and understand what the Constitution plainly says?  To believe any of that anti-gun bilge, you’d have to be terminally stupid.  

Let’s read a few examples of what several courts across the country and across history had to say in the years after the Constitution was adopted.  Please judge for yourself and draw your own conclusions. 

One note before starting:  I suspect the Esteemed Readers will never see any of these quotes or rulings either reported or cited on the evening news but that would be just a guess.

1803:  George Tucker, Judge of the Virginia Supreme Court and U.S. District Court of Virginia in I Blackstone COMMENTARIES Sir George Tucker Ed., pg. 300 (App.)

“The right of self-defense is the first law of nature; in most governments it has been the study of rulers to confine this right within the narrowest possible limits...and [when] the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.”

1822: Bliss vs. Commonwealth, 12 Ky. (2 Litt.) 90, at 92, and 93, 13 Am. Dec. 251

"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."

1846: Nunn vs. State, 1 Ga. (1 Kel.) 243, at 251

" 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."

1859:  Cockrum v. State, 24 Tex. 394, at 401-402

"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."

1871: Andres v. State, 50 Tenn. (3 Heisk) 165, 178

“....the right to keep arms necessarily involves the right to purchase them, to keep them in a state of efficiency for use, and to purchase and provide ammunition suitable for such arms, and to keep them in repair.”

“The rifle of all descriptions, the shot gun, the musket and repeater are such arms; and that under the Constitution the right to keep and bear arms cannot be infringed or forbidden by the legislature.”  [ANDREWS V. STATE; 50 TENN. 165, 179, 8 AM. REP. 8, 14 (TENNESSEE SUPREME COURT)]

1876: The Supreme Court, in U.S. v. Cruikshank (92 U.S. 542)

Recognized that the right to arms preexisted the Constitution. The Court stated that the right to arms "is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence."

1878: Wilson v. State, 33 Ark. 557, at 560, 34 Am. Rep. 52, at 54

"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."

1921: State vs. Kerner, 181 N.C. 574, 107 S.E. 222, at 224

"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."

1922: People vs. Zerillo, 219 Mich. 635, 189 N.W. 927, at 928

"The provision in the Constitution granting the right to all persons to bear arms is a limitation upon the power of the Legislature to enact any law to the contrary. The exercise of a right guaranteed by the Constitution cannot be made subject to the will of the sheriff."  

2000: Tuesday, June 13th. Let’s fast-forward to the Clinton years of judicial activism and see how an attempt was made to unscrupulously bastardize this long venerated inalienable right by a dangerously anti-gun, anti-constitution administration in U.S. v. Emerson.

Early accounts from those who attended the week's oral arguments on U.S. v. Emerson (see FAX Alert Vol. 7, No. 23) revealed, with no uncertainty, how the Clinton-Gore Administration truly viewed our Right to Keep and Bear Arms. The attorney representing the government, William Mateja, said that the Second Amendment offers law-abiding U.S. citizens no protections against the government prohibiting them from owning any firearm. Judge William Garwood, one of three judges on the panel that heard arguments, had the following exchange with Mateja:

Judge Garwood: "You are saying that the Second Amendment is consistent with a position that you can take guns away from the public?  You can restrict ownership of rifles, pistols and shotguns from all people?  Is that the position of the United States?"

Meteja (attorney for the government): "Yes".

Garwood: "Is it the position of the United States that persons who are not in the National Guard are afforded no protections under the Second Amendment?"

Meteja: "Exactly."

Fortunately, the court rejected the Clinton-Gore argument—this time.

It’s frightening how tenuous is the jewel of liberty and how easily it can be incrementally eroded if left unguarded by the people and totally entrusted to the Machiavellian machinations of insidious politicians.

James Madison had it pegged, 

"I believe there are more instances of the abridgment of the freedoms of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations.”

If the un-elected Governor, Kate Brown, of Oregon begins legislating from the Executive Branch of the Oregon State Government, she shall be subverting the intent of the Oregon State Constitution, the Law, and the Legal System she was sworn to uphold. Then again, maybe she does not care about reason, the Law, or the Legal System.

It’s my uncompromising conviction that unless the people jealously guard our jewel at every turn and strongly reject any attempt to incrementally infringe on our freedom, we will eventually and unwittingly lose it—piece by little piece.  Once it is lost however, it might be lost for generations. Generations that won’t even know what they’ve lost.


Excerpts from:  What The Courts Said by Colonel Dan

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