Now with this next statement I am sure I am going to get a ton of hate mail but please hold judgment until you have read the entire article. You do not have a Second Amendment right to keep and bear arms! Now I want you to understand, you MAY have a right to keep and bear arms, but it is not granted by the Constitution.
I can already hear the missiles heading my way. Let me explain; the Second Amendment was added to the Constitution to prohibit the FEDERAL government from passing any law that infringes on the people’s right to keep and bear arms. Remember when discussing constitutional interpretation or law everything is based on context. The Constitution defines what the government can (enumerated powers) and cannot do (Bill of Rights).
Now remember the context of the Constitution is solely the federal government and therefore all items within the Constitution are based upon defining its powers and limitations including the Bill of Rights. Ah, the bright reader will exclaim, but what of the Supremacy Clause making federal law supreme and therefore the states must follow?
The Supremacy clause is found at Article VI, Clause 2 which states:
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
In 1982 the Supreme Court ruled in Edgar V. Mite Corporation that:
“In effect, this means that a state law will be found to violate the supremacy clause when either of the two conditions exist:
1- Compliance with both federal and state law is impossible, or
2- …state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress…”
So in the first instance the state must acquiesce to the federal so long as Congress has not exceeded its authority. If the Congress has exceeded its authority then the act is invalid and void regardless of the Supremacy Clause and thus no priority over the state law.
In the second instance if the Congressional act is found valid and the intent is to preempt state policy for that of national uniformity then the state is subordinate and must comply with the federal law.
So as we can see the Supremacy Clause only comes into play when the federal law supports a constitutional power of the federal government to legislate as outlined in Article 1, Section 8 of the Constitution. And although many on the left would love to point out that power it just is not there.
In fact for anyone with 15 minutes and an internet connection can determine that the original Firearms Act, which today’s laws are based, was originally codified under Title 15 which is entitled “Commerce and Trade” and was a tax scheme.
This act was based upon the perceived need to regulate the firearms industry and license the dealers, manufacturers, and gunsmiths within the firearms trade. It was based upon the Interstate Commerce Clause of the Constitution. The new “laws” under the Act included the creation of a Federal Firearms License (FFL), for anyone doing business in the firearm trade as well as to place a large tax on certain weapons they deemed inappropriate such as machineguns and silencers. One of the other goals was to prohibit FFL holders from selling firearms to convicted felons. Requiring FFL holders to keep records of all firearms sales, and for the first time it made any alteration of firearm serial numbers a crime. Some felt this was an infringement on state jurisdiction by enacting a law that reached past the state boundary, in violation of the Constitution.
From 1934 to 1968 everything went along fairly well until the government decided to play a little shell game when they switched the Firearms Act from Title 15 to Title 18. Title 18 is entitled “Crimes and Criminal Procedures.” Why would the government switch the code section from Title 15 to Title 18 after having been codified under Title 15 for thirty years? The only rational reason is jurisdictional obfuscation, or hiding what would otherwise be apparent as to the limits the government could act upon us, the citizens. You see, under Title 15, the government was within its rightful jurisdiction of “Commerce and Trade”. However, if you are bound by “Commerce and Trade”, you cannot enact laws on normal citizens who are not acting in the “trade.” Therefore, the government changed, with the stroke of a pen, their Constitutional powers from commerce to crime.
The publicized purpose under Title 18 was to provide better control of “interstate” traffic in firearms. However, the stated purpose of the act is as follows:
Title I – State Firearms Control Assistance
“Sec. 101. The Congress hereby declares that the purpose of this title is to provide support to Federal, State, and local law enforcement officials in their fight against crime and violence, and it is not the purpose of this title to place any undue or unnecessary Federal restrictions or burdens on law-abiding citizens with respect to the acquisition, possession, or use of firearms appropriate to the purpose of hunting, trapshooting, target shooting, personal protection, or any other lawful activity, and that this title is not intended to discourage or eliminate the private ownership or use of firearms by law-abiding citizens for lawful purposes, or provide for the imposition by Federal regulations of any procedures or requirements other than those reasonably necessary to implement and effectuate the provisions of this title.”
Did you catch that? To support State, and local law enforcement! Where does the Constitution say anything about the federal government assisting law enforcement? Remember, the federal government cannot legally do anything that is not specifically enumerated by the Constitution. So where is its justification? It has none; any federal law that falls outside the enumerated powers of the Constitution is repugnant and is void. That does not stop the jack-booted thugs from kicking in your door and enforcing unjust and unconstitutional laws; it just makes them wrong with a gun.
So if the federal government is acting outside of its enumerated powers then the supremacy clause does not come into play. The only other nexus would be through the 14th Amendment which I will get to momentarily.
Now getting back to my original statement; you do not have a Constitutional right to keep and bear arms; you do have a Second Amendment right not to have your right to keep and bear arms infringed upon by the Federal Government. I say it this way because of the context the Amendments were added to the Constitution. The Bill of Rights was not a grant of right but a prohibition against the federal government acting against the people for the rights listed in the Bill of Rights. But as we can see that has not worked out very well.
Now this leads us to the Chicago case; if the Supreme Court had acted correctly it would have never agreed to hear the case. The proper venue would have been the State Supreme Court arguing that the Illinois Constitution, Section 22 granted “…the right of the individual citizen to keep and bear arms shall not be infringed.”
As you can see the Illinois Constitution has explicit language identifying the individual having the right to keep and bear arms and is directly applicable to the Chicago residents.
I know there are those out there who will ask; can a state regulate firearms as they are doing in Chicago? The answer is – Depends! It depends on the State Constitution. It is my understanding that most, if not all, states have a provision within their State Constitution similar to that of the Second Amendment but the bottom line is the state is supreme except for where the Constitution grants the federal government power and the Bill of Rights is not a grant of power (Article 1 Section 8) but a limitation of power against the federal government.
This leads us to the 14th Amendment; the other nexus the Supreme Court may use to gain leverage over the state. The second clause of Section 1 of the Amendment states: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” This does not preclude the Federal Government from doing so, but only precludes the individual states from passing laws contrary to the federal laws against the new class of federal “citizens of the United States”.
I won’t go further with the 14th Amendment as it would take far more space than this article to fully cover but I bring it up merely as a possible nexus for the Supreme Court to rule.
As far as how the court will rule is anyone’s guess; but if they rule that all states are bound by the Bill of Rights then it is a blow to State Sovereignty, if they rule against the plaintiffs then it goes against the precedence of similar rulings for 1st and 4th Amendment cases and sets the stage for further litigation and claims of inequality and the courts picking which rights it will defend.
Lastly I have heard the comparisons of this case to the Heller case that ruled the right to keep and bear arms was an individual right to have a handgun for self defense. It was the right decision for the wrong reason. Heller did not live in a state of the Union but in a federal enclave under which Congress has exclusive jurisdiction and as such was bound by federal law and the prohibitions of law enumerated in the Bill of Rights. And because Congress has “exclusive” legislation in federal enclaves is bound by the limitations of the Bill of Rights for its citizens.
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This is not the case in Chicago and in my humble opinion is a state matter not a federal one. I also wish to let everyone know that I am 100% behind the right of everyone to keep and bear arms but it is the responsibility of the PEOPLE to hold government accountable when it goes astray especially within the states of the Union and not to wait for the federal government to do so.
© 2010 Michael LeMieux – All Rights Reserved