Every gun control law in the United States is unconstitutional. There can be no argument. The Constitution plainly states that the right to bear arms shall not be infringed. The prefatory “militia” comment is essentially irrelevant. The second amendment could just as well have been written: “Because there are varmints everywhere, the right of the people to keep and bear arms, shall not be infringed.”
At some point, so-called “progressives” would have argued that since varmints had been virtually eliminated or forced into the hinterlands, in the modern world the right to bear arms was no longer necessary, and therefore the amendment became open to modification. Voil! Gun control laws galore! It is certainly arguable that since varmints were no longer a threat, perhaps people no longer really needed guns and maybe restrictions made sense, to lessen the chance of accidents or tragedies caused by unstable persons. However, this is constitutional only if enacted via an amendment to the Constitution!
What could be more obvious? An amendment to the document can only be neutered by a later amendment, correct? No mere law can be enacted which can countermand the Constitution or can it? If you read nothing other than 33 Questions About American History You’re Not Supposed to Ask, you’ll come to understand that circumventing the document has been government’s intention from Day One. Read a few more books, including Hologram of Liberty, and you’ll likely come to the conclusion that the Constitution’s general welfare and commerce clauses were included for the express purpose of enabling such duplicity.
So how has government been able to get away with all its thousands of illegal gun control laws? The process is simple: it enacts a law, and leaves it up to itself to decide if the law is valid. You read correctly. A legislature enacts a gun control law, then it’s challenged and goes into the government’s court system for adjudication. Judges are paid by the government, and in the case of federal courts, judges are appointed by the government. Naturally there are always cases of exceptional individuals, who are able to rise above such petty matters as maintaining one’s livelihood and social status, but it would appear intuitively obvious that, generally, judges are going to lean toward the side of the state.
That’s how it happens. A (perhaps) popular yet unconstitutional law is challenged in court, and is struck down. The law is modified somewhat, re-enacted, and challenged again. Eventually some “progressive” judge proclaims the law is acceptable. Later, it goes to an appeals court or supreme court, where a handful of politically-appointed justices use convoluted logic to deem it valid. The floodgates are then opened.
A good example of this is the country’s first handgun registration law, New York’s 1911 Sullivan Act, still in effect to this day. Apparently aimed at immigrants and championed by criminals (including state senator Sullivan himself), it required a permit, issued by the police, to carry or own any firearm small enough to be concealed. In a 3-2 state appeals court decision two years later, the court ruled that “the keeping of a revolver by a householder in his home might [indeed] be prohibited by the Legislature as a penal offense, under the ‘police power’ clause of the Constitution, despite the constitutional guarantee of the right to bear arms.” Can any reasonable person view this “logic” with anything other than puzzlement and contempt? The police power clause overrides the right to bear arms in one’s own house? How absurd!
The court added, “For the safety of the public, for the preservation of the public peace, the Legislature has passed a regulative, not a prohibitory act. Legislation which has for its object the promotion of public welfare and safety falls within the scope of the police power and must be submitted to, even though it imposes restraints and burdens on the individual.” Huh? A “regulative” act which forbids keeping a gun in the home isn’t prohibitory? Such a law doesn’t violate the second amendment? It’s ridiculous!
This is how the system operates. A little gun control regulation here, a little wiretapping rule there “merely to enhance the public safety and welfare.” They don’t violate the Constitution because they are “allowed” (through twisted logic and inferences) by other parts of the Constitution. The people think it’s not a big deal, these incremental assaults on freedom, and the informational and transaction costs of challenging them are high. They get used to it. It seems normal. Life is generally good, we’re well fed, and there are other matters to think about, like this week’s football games. Soon, however, all of our freedoms will be gone, and we won’t even notice, like the proverbial frog in the pot of water, brought to a very slow boil.
November 22, 2007
Andrew S. Fischer has worked in various fields.