Checks & Balances and the 2nd Amendment

I was recently asked an interesting question.  I had heard the question before in the media, so it was no surprise that someone was quoting it back to me.  The question was: “Do you think our Founding Fathers envisioned AR-15 style rifles and 30 round magazines when they drafted the 2^nd Amendment?”

It is an interesting question because the logical answer is: Of course our Founding Fathers did not envision AR-15 style rifles and 30 round magazines when they drafted the 2^nd Amendment.  Of course, it is logical to assume that the Founding Fathers also did not envision horseless carriages (automobiles), microwave ovens, space travel, nuclear energy, computers, or any of the other modern conveniences that we take for granted today.

But the real implication of the question is that the 2^nd Amendment is frozen in time and that the People only have the right to “keep and bear” the arms that were in existence on the day the 2^nd Amendment was drafted, namely muskets.  So, the real answer to the question and the implication is: Does it really matter whether the Founding Fathers envisioned AR-15 style rifles and 30 round magazines when they drafted the 2^nd Amendment?

Once again, you have to look at the purpose for which the 2^nd Amendment was included in the Bill of Rights of the U.S. Constitution.  The purpose of the 2^nd Amendment was to permit the People to overthrow the government should the government ever deny the rights to the People that are contained in the remainder of the U.S. Constitution.  In other words, the 2^nd Amendment provides the People a check and balance on the power of government.  The People may never need to use the power retained by them in the 2^nd Amendment but the mere existence of the 2^nd Amendment is what prevents the government from denying the rights guaranteed by the U.S. Constitution to the People.

With that in mind, it would appear that the Founding Fathers were very shrewd in their drafting of the Bill of Rights.  Not only did they not envisioned AR-15 style rifles and 30 round magazines when they drafted the 2^nd Amendment, but they also understood that they could not envision the future.  For that reason, they did not state that the right to keep and bear arms was limited to muskets or whatever other weapon was available to the government on the date of the drafting of the 2^nd Amendment.  In order for the 2^nd Amendment to work properly, the 2^nd Amendment had to be drafted in a more flexible manner to retain its usefulness into the future.

When you combine this flexibility with the intent of the 2^nd Amendment, the only logical conclusion you can draw is that the Founding Fathers intended the People to have access to the same technology that is available to the government.  In today’s society, that means that if the government has the technology to build and arm government representatives with AR-15 style rifles and 30 round magazines, the only way to ensure that the check and balance of the 2^nd Amendment remains intact is to permit the People to own the same technology, namely AR-15 style rifles and 30 round magazines.

The unfortunate reality is that some of our government representatives want to take away a power that was expressly retained by the People, thus removing one of the most important checks and balances of our U.S. Constitution.  By removing the right of the People to possess the same technology that is available to the government, the government becomes more powerful than the People.  We cannot let that happen.  We must maintain the line.

Universal Background Check Are Anti-U.S. Constitution

I was watching a morning talk show and the topic of Gun Control came up.  Interestingly, only the subject of “universal” background checks was discussed.  Note my quotation marks for the word “universal” because it seems to be a new catch phrase with some positive connotation.  Please do not be fooled.  This is just “new” and “improved” packaging on an age old attack on your rights under the U.S. Constitution.  As with all gun control legislation, this is not an attack on the 2^ndAmendment, but an attack on every other provision of the U.S. Constitution.

Starting with the intent of the 2^nd Amendment as our guide, let’s analyze this.  The 2^nd Amendment of the Bill of Rights is a dormant provision.  In other words, as long as everything is going smoothly in the United States, the 2^nd Amendment has no real purpose.  Anyone that has ever financed a home or new car knows what I am talking about.  In every home or new car financing transaction there is a contract the purchaser signs.  That contract, in the first page or two, states the purchaser’s obligations.  Usually, it says something as simple as, “Purchaser agrees to make monthly payments of $xxx for yyy number of months until the debt is paid off.”  So what do the other 10 or 20 or 30 pages of the document do?  Those pages do nothing as long as the simple 1 line obligation of the purchaser is adhered to.  They are dormant until the time when the purchaser no longer is complying with his or her obligations.  Then, and only then, does a bank need the clause that allows them to foreclose on the house or repossess the car.

The U.S. Constitution operates much the same way.  As long as the Government complies with its obligations under the U.S. Constitution and the 26 other Amendments, the 2^nd Amendment remains dormant.  Do not confuse dormancy with obsolescence.  No bank would finance a home unless there was some means by which the bank could guaranty it could get its money back.  In good financial times, when foreclosures were at an all time low, was there any discussion to prohibit banks from foreclosing on property?  Wishful thinking.

Keep in mind that the People are the Bank in the above scenario.  The People had something the Government wanted, namely the People had all the rights.  Through the U.S. Constitution, the People expressly granted some rights to the Government, expressly retained enumerated rights for themselves or for the States, and provided wonderful provisions on how to interpret the Constituion in the 9^th Amendment and 10^th Amendment.  Adding to that is the 14^th Amendment.  In short, these provisions combine to provide that powers not delegated to the Government by the Constitution, even if not expressly reserved by the People to the People, are still not possessed by the Government.  In other words, for purposes of our conversation, the People kept some guaranties that the Government would honor its obligations.

So what does this have to do with “universal” background checks.  The media and some in the Government that are in favor of universal background checks would have us believe that sales of firearms between private individuals, especially at gun shows, happens in such a tremendous volume that this is a threat to public safety.  So much so, that outlawing these private sales is warranted regardless of its effect on our Constitutional Rights.

On the gun show issue alone, they are lying to us; lying to the People.  The Gun Control Act of 1968 (GCA) states the following:

“The term "dealer" means (A) any person engaged in the business of selling firearms at wholesale or retail, (B) any person engaged in the business of repairing firearms or of making or fitting special barrels, stocks, or trigger mechanisms to firearms, or (C) any person who is a pawnbroker. The term "licensed dealer" means any dealer who is licensed under the provisions of this chapter.”

The very first operative provision of the GCA  provides:

“It shall be unlawful … for any person … except a licensed dealer, to engage in the business of … dealing in firearms, or in the course of such business to ship, transport, or receive any firearm in interstate or foreign commerce”

According to the GCA, anyone in the business of dealing in firearms needs to be licensed.  I would conservatively estimate that 95% of the firearms sold at a gun show are sold by Federally licensed firearms dealers (FFLs).  The actual number is probably higher.  If an FFL disposes of a firearm in any manner other than to another FFL, a background check must be done.  So that leaves maybe 5% of firearms sold at gun shows being sold by non-FFLs.  So who are these other 5%?  They are either unlicensed people in the business of dealing in firearms in violation of the GCA or they are private individuals not in the business of dealing in firearms.

The GCA already provides for penalties for unlicensed persons dealing in firearms.  Now, the Government wants to regulate private individuals not in the business of dealing in firearms.  This is such small number of people with such a small number of firearms, why is it so important to regulate them?

The same principles of the GCA apply to people outside of the gun show arena.  If someone is in the business of dealing in firearms, they must be an FFL or they are committing a crime.  Again, private sales of firearms between individuals outside of gun show is such a small number, why is it so important to regulate them?

The way the Government wants to regulate this small number of people is by making these people conduct background checks before they transfer a firearm.  So what happens if no background check is done?  The people are criminals.  How does the Government purport to expose this criminal activity?  There has been very little discussion on this topic because the manner would not be very pleasing to the bulk of the People.

In order to enforce universal background checks, the Government would first need an additional law that says it is a crime not to report a lost or stolen firearm.  (This has already been proposed under the guise of helping police officers.  How it accomplishes that is a mystery but it sounds good.)  This is needed so that if you dispose of the firearm without a background check and did not report it lost or stolen, then you have committed one of two possible crimes:  failing to do a background check or failing to report a lost or stolen firearm.  But this only works if the firearm ends up in the hands of the Government and they are able to trace the firearm back to the person that transferred it without a background check.  So what about all those other transfers where the firearm does not end up in the hands of the Government?

The only way to enforce a universal background check system is to have gun registration for all firearms and then the right of the government to enter your home to verify that the firearms you possess are in fact lawfully registered.  Without gun registration, there is no reliable way for the Government to know how a firearm came to be possessed by a particular person.

Once firearms are registered, the 2^nd Amendment is no longer dormant.  It becomes obsolete.  Not because it is no longer needed, but because the effectiveness of the 2^nd Amendment is so impaired that it will no longer work for its intended purpose.  Instead of having to go door to door to search for firearms, the Government merely needs to issue a statement that everyone with a registered firearm needs to turn the firearm into the Government or go to jail.  Then the Government only needs to round up the People that did not turn in their firearms and imprison them.

Imagine if for some reason or another, Banks are told that they could not foreclose on a home and they no longer have any guaranty of payment when the homeowner has stopped paying the mortgage.  How many homeowners would continue to make payments of their mortgages?

The Government will act the same way.  If the Government finds a way to eliminate the consequences of infringing on free speech rights, having secret backroom criminal trials, or pronouncing people guilty until proven innocent, the Government will adopt laws to make it so.  It is only because of the dormant nature of the 2^nd Amendment and the harsh consequences of the failure of the Government to honor its obligations under the U.S. Constitution that the 2^nd Amendment has never had to be used for its intended purpose.

The People must maintain the line and not let the 2^nd Amendment be viewed as obsolete.   As goes the 2^nd Amendment, so go the rest of our Freedoms.

Maintain the Line!!!

In creating this Blog, I did a Google search for references to the U.S. Constitution so that I could provide my readers a link to the actual text.  You will find those links to the right. So many of us think we know what the Constitution and the Bill of Rights provide, but so few people have actually read the language.  In that search, I found sites that purported to analyze the Constitution.  And one site in particular analyzed the 2^nd Amendment in relation to current societal views.  The author of that site states:

"[R]ealizing that firearms are a part of our history and culture and are used by many for both personal defense and sport, this site has proposed a new 2nd Amendment — an amendment to replace the 2nd Amendment to the Constitution."

The proposed amendment reads in part as follows:

"The right of the people to keep arms reasonable for hunting, sport, collecting, and personal defense shall not be infringed."

The interesting thing that is missing from this proposed amendment is the right to keep and bear arms for the protection of the rights granted to the People under the Constitution.  Our history includes that use of firearms and also includes instances where unarmed Americans were stripped of their rights by the Government.  Quite frankly, it is nice to have a firearm for hunting or for sport but I do not "need" firearms for those purposes.  The purpose for which I "need" firearms is the protection of the Freedoms granted to me by the Constituion.  Wow, and that happens to be the purpose for which the 2^nd Amendment was included in the Constitution in the first place.  Go figure.

And please do not think all firearms are the same.  Firearms that are good for hunting or sport are not always the best suited in battle.  Also, limiting the thinking to a firearm used for self-defense introduces the possibility that a firearm can be prohibited because its true usefulness is offense and not defense.  If you ask some politicians today, they see handguns that hold only seven rounds of ammunition as all that is needed for self-defense.  But would we send our soldiers or police officers into battle with such firearms?  We would have hell to pay.

Finally, the author on that website goes on to say:

"This proposed amendment is a truer representation of how our society views our freedom to bear arms.”

If you poll the people and you ask them the following: under current conditions, where we have the peaceful transition of power after a national election and our current laws grant freedom to the press and a right to a speedy and fair trial, what is your view on our freedom to bear arms?  Most will probably agree with the author.  The people polled were most likely born in the United States and have come to take the Freedoms we have here for granted.  It is because of the 2^nd Amendment that the people currently have these Freedoms, not in spite of the 2^nd Amendment.  People have been lulled into a sense of complacency.  Probably even a sense of moral superiority in the belief that the their Freedoms can never be taken away.  History has repeatedly proved these people wrong.

I suggest that if you poll the people, and press them on the question of how far they would go to defend their right to vote if eliminated by the Government or how far they would go to defend their families from Government incarceration for prohibiting their right to practice their religion, society (the People) would be willing to take up arms.  Any person that believes that society is ready to give up free speech, voting rights, protection from having land taken by the government, or the right to a trial by a jury of their peers is not asking the right questions.

But, if restrictions are permitted to be put in place during the time of complacency as suggested in the proposed amendment, what arms will the People actually have available to them when the Government starts to trample on the Bill of Rights; arms that only have usefulness for hunting, sport, collecting or self-defense.  The technology and arms available to the government would have progressed far beyond those of the People.  Picture farmers with pitch forks fighting trained soldiers with Gatling guns.  Not a pretty picture is it?

Keep in mind that the Government needs to weaken the 2^nd Amendment before it can strip away the other rights provided by the U.S. Constitution.  That is why the 2^nd Amendment is the 1st Line of Defense.  We cannot let that line fall.  As goes the 2^nd Amendment, so go the rest of our Freedoms.