US Is Marching Down the Path Toward a Usurpation of All Liberties
U.S. Constitution and Declaration of Independence (AP Photo)
“I go further and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution but would even be dangerous.
They would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted.
For why declare that things shall not be done which there is no power to do? Why, for instance should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?
I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish to men disposed to usurp, a plausible pretense for claiming that power.
They might urge with a semblance of reason that the Constitution ought not be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication that a power to prescribe proper regulations concerning it was intended to be vested in the national government.” - The Federalist Papers, No. 84.
Alexander Hamilton was opposed to the inclusion of a Bill of Rights and made cogent arguments in support of his position to the Convention. His position against inclusion may not have won, but his underlying logic certainly is clearly instructive on what was the original constitutional intent. This intent, however, has been perverted over the years in the very way and by the very forces that he cautioned against – a Legislature and Executive acting out of a greed for expansion of power and an ill intent. Just as he warned regarding the usurpation of the “liberty of the press,” we are marching down the path toward a usurpation of all liberties. The original constitutional intent was to make inviolate the liberties expressed in the Bill of Rights, and to ensure such, the Legislature and the Executive was granted NO power to invade those liberties – this includes the 2nd Amendment. Hamilton believed the Bill of Rights were unnecessary based on the clear constitutional intent that the national government was given NO power to invade those liberties. Unfortunately, Hamilton’s faith in the understanding and character of his fellow man and the national government was grossly wrong.
I find it most disturbing that on, of all weekends, the 4th of July weekend, the time we celebrate our nation’s declaration and commitment to our individual freedoms, there were reports that Speaker Ryan will allow (possibly support?) a bill(s) that will place a limit on 2nd Amendment rights. This is confusing, distressing and makes me wonder if Ryan actually understands constitutional and American history. The alleged bill(s) would place (some unspecified) limits or controls on who can be given permission to possess “arms.” Presumably, these limits are aimed at people who are placed on the ubiquitous, secret “terrorist watch list” and/or a similar “No Fly” list. While few people know what the exact terms would be, there is no question that lawmakers on both sides of the aisle are promoting such “list” exclusions.
Before I am accused of being “somethingphobic” or accepting or perhaps (by the dogmatic left) of promoting “gun violence,” here are my historic and factual objections to such a bill(s).
First, for those that recall American history (or those that don’t), one of the prime reasons for the establishment of this country (and the Bill of Rights) is the rejection of the authoritarian control over the people that the King had. In order to establish a system of government where the Natural Rights of the people are guaranteed and ensuring that no “executive” can invade or diminish those rights, the Framers wrote the 2nd Amendment (as well as the 1st, 4th, 5th, 6th, 7th Amendments) in conclusive terms “Congress shall establish NO law… .” The Framers were skeptical of both the governed and those governing to adhere to this precept. They didn’t want to chance these Natural Rights to the whim and caprice of an Executive or a governing body swayed by the heat of passion or more nefarious enticements – ignoring the will of the people.
Second, the liberal adherence to a spurious recounting of American history surrounding the 2nd Amendment can only be attributed to a less than honest intent. Without providing a detailed exposition of the historical background, I would simply refer the reader to my article on the subject.
Throughout British history, possession of “arms” was both a mandatory thing (for the forced protection of the “Realm”) and only upon receipt of a “license” from the King to possess them. The license thus ensured the King could control the people and prevent any “uprising” or opposition to his complete authority. The liberals wish to utilize the argument that our (British) history is “settled” that the government can require “licenses” to possess “arms.” This half-truth reframing of the 2nd Amendment (as some type of “codification” of British law into our Bill of Rights) is disingenuous at best, and most likely an intentional act of deception. Quite the contrary, it was the intent of the Framers to – forever – preclude that very type of “kingly” (or “Executive”) authoritarian control of a person’s ability to protect his/her person, home and family. To be protected from the possible confiscation of those “arms,” being forced to bear those arms for the “king,” and to preserve his/her ability to protect the electorate from a “take-over” of the government by the use of federal “militia” at the hands of a despot. Thus, by forfeiting a citizen’s (and I use that term specifically) 2nd Amendment right by an act of Congress (especially without the protection of Due Process), it is a direct and dangerous breach of one of the fundamental protections that the Framers believed was required for the preservation and protection of this Nation.
As was stated by "Cato," Anti-Federalist Letter V, November 22, 1787, to the Citizens of the State of New York: "Therefore, a general presumption that rulers will govern well is not a sufficient security. You are then under a sacred obligation to provide for the safety of your posterity... ." When describing the framework for the President "... the great powers of the President, connected with his duration in office would lead to oppression and ruin. That he would be governed by favorites and flatterers, or that a dangerous council would be collected from great officers of state ... that if you adopt this government, you will incline to an arbitrary and odious aristocracy or monarchy – that the president possessed of the power, given him by this frame of government differs but very immaterially from the establishment of monarch in Great Britain ... ."
Third, as the Framers also intended to ensure, they wanted to guarantee a right to individual Due Process to prevent the establishment of any system (such as the King had) which would continue or replicate a “star chamber” approach to individual rights and enforcement of laws. This was ensured in the 4th, 5th and 6th Amendments. Liberals have not only strenuously adhered to these fundamental rights, but advocated repeatedly to expand those protections. But this same support is palpably absent in their support of the 2nd Amendment. Our entire system of jurisprudence is predicated on the fundamental principle of “Innocent until proven guilty.”
As is reported in the news media, Congress may be considering a variety of methods of preventing “arms” from getting into the hands of certain classes of individuals. While the bill(s) will determine many of the thorny issues addressed herein and elsewhere, my main objections to the approach currently being considered are listed below.
First, throughout my discussion, I draw a distinction between the treatment of “citizens” and treatment of “non-citizens.” In addition to objecting on fundamental rights grounds (as stated infra), there is an objection based on the existence, operation of and control of theses “No Fly” and “Terrorist Watch Lists.” Any such list is a potential cesspool for “executive” abuse as feared by the Founders (as happens with the IRS and other government functions where the “executive” can control); the current “lists” could place people on such a list mistakenly or improperly (if not as a punishment); there are no protections or due process involved prior to a person’s inclusion on to the list; the person would be divested of his/her 2nd Amendment right, unless or until he/she undertakes a judicial process to “prove himself innocent” and be removed from the “list” ( prohibitively time consuming and costly); and in most cases (as in classified evidence cases) the government will not or cannot disclose its sources for inclusion on the list, and thus will be even more difficult to be removed. Other logistical and rational objections are: there are 10’s of thousands of names on these lists which could close-down the federal courts with people challenging their inclusion; the law would require the disclosure of all the names on the lists so that individuals can challenge their inclusion; such an action could be determined to be violative of both the 2nd Amendment and the 6th Amendment “taking” clause; and it could be a “short bus trip” from preventing someone who is (or is put on) the list, to a knock at the door to confiscate “arms” lawfully obtained previously.
While everyone is saddened and disgusted by “gun violence,” and equally prayerful of stopping Islamic terrorism, the liberal’s “answer” of “banning the gun” will never solve the problem. This most recent wave of emotional legislative action is predicted heavily on an attempt to curb Islamic terrorist attacks. Any objective, non-biased individual who actually studies “weapon” violence cannot honestly argue that even banning “arms,” let alone just limiting certain individuals from possessing them, will stop such attacks from happening. They would not even slow down. The only result is imposing on citizens a divestiture of their constitutional rights.
What then is the answer? The answer is not in the regressive’s knee-jerk dogma of attacking “guns.” It is the “people who perpetrate” the violence. First, there should be a distinction between the “rights” of non-citizens and those of U.S. citizens. (Yes, the author is well aware of certain court decisions, but court decisions can be wrong-headed and political. Additionally, if Regressives can daily ignore and/or lobby against certain case law, the same “right” to do so by any other political persuasion must be afforded equal protection and acceptance.) There simply should be no right for non-citizens to possess “arms.” Second, current immigration laws are not being enforced – AT ALL – leading to a borderless, lawless country (Obama has repeatedly proven he has no respect for the Rule of Law). The U.S. is one of the only countries that does NOT profile. Israel does – successfully. Japan just passed a law to profile and watch Muslims. Third, we must have stricter immigration controls and limitations (for many reasons – security is only one). It is utter folly, if not insanity, to believe that we can “vet” 10’s of thousands of Middle Easterners (or from any country) – before they get here, when there are no records, no knowledge of who they are, where they come from, affiliations, etc. etc. If you can’t vet them at the “point of origin,” vetting them after they arrive here can only be concluded to be an intentional act of disregard for the safety and security of our Nation and its citizens. Fourth, we must provide more enforcement personnel, technology and coordination. The “solution” is complex, and must be approached on a “Global” basis. So, blaming “guns” and the 2nd Amendment for the terrorist tragedies occurring in the U.S. (general gun violence is another topic that needs discussion) yet ignoring and giving a “pass” for the pathetic, failed immigration and anti-terrorist policies of this feckless, tone deaf, Administration would be like banning cars because over 9,987 people died from DUI in 2014 (more than those who were murdered by “guns” in 2014). Banning “guns” will not stop an individual who is hell-bent on conducting a “mandatory” violent religious act of hatred (regardless of the religion). “9-11” had no guns. Boston had no guns. Car bombers have no guns. The Blind Sheik’s attack on the Twin Towers had no gun. Suicide vests use no guns. Boat attacks against our military ships had no guns. The list goes on.
Like most problems that Congress is expected to “fix,” this will take some intellectual creativity to develop a workable solution that actually addresses the problem (gun violence) without creating more problems, stays within the legitimate power of the national government, and does not punish “everyone.” Unfortunately, this issue clearly demonstrates that the people we send to Congress are more interested, time after time, in showing the people that they are doing something – anything to justify their existence, rather than doing the RIGHT thing. I am exceedingly disappointed in Congress and their attempt to cow-tow to the Regressive’s incessant drumbeat of “blame the gun.” The Congressional bus, now driven by Speaker Paul Ryan, is driving right over the graves of our Founders – and our Constitution. Drive carefully Speaker Ryan.
Kenneth Kopf, Esq. is an attorney that has been practicing international law for over 30 years, has authored numerous writings on various U.S. and international political subjects, was a candidate for U.S. Congress, and has served as a Russian linguist within the U.S. intelligence service. @kennkopf
http://www.cnsnews.com/commentary/kenneth-kopf/us-marching-down-path-toward-usurpation-all-liberties
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