A rebuttal to the left on Gun Control

A rebuttal to the left on Gun Control

The Supreme Court in the Heller decision explained that the second amendment guarantees an individual right of the people to keep and carry arms for their defense in the event of a confrontation.

The anti-gun crowd, however, refuses to accept this common sense reading of the amendment. The best way to interpret the Constitution begins with actually reading it.  The next best thing is to read what the Constitution’s chief drafter, James Madison, had to say about America’s founding document.  Madison was the chief author of the Federalist Papers, along with John Jay and Alexander Hamilton.  The Federalist Papers offer great insight into the political theories of the day that led to our system of government.

Students of the second amendment should be familiar with both Federalist 29 and 46, which discuss the role of an armed populace in protecting the precious freedom which had so recently been won.  It was that thinking that led to the adoption of the second amendment.

Madison was also the original drafter of the Bill of Rights, including what would become the second amendment. The anti-gun crowd regularly accuse second amendment supporters of only focusing on what Justice Scalia called the operative clause of the second amendment, the phrase “the right of the people to keep and bear arms shall not be infringed.”  They assert that we ignore the prefatory clause that reads, “A well-regulated militia being necessary to the security of a free state.”  To them the prefatory clause confirms that the purpose of the amendment was to protect the right of the states to have militias or as they sometimes phrase it, the right to bear arms when in militia service.

However, beyond that, they never exactly explain what is meant by “the right of the people to keep and bear arms shall not be infringed.” The anti-gun crowd cling to the so-called collective rights view of the amendment that held sway with a number of federal circuit courts pre-Heller.  However, beyond denying an individual right to keep and bear arms, those courts said precious little on exactly what the amendment actually protected.

It was commonly stated outside the court room that the operative clause meant that the federal government could not disarm the state militias.  But that is not what the amendment says and no federal circuit court actually provided any reasoned discussion supporting such an interpretation.  In any event, if that were what the amendment was meant to accomplish, one would think the amendment would have been written in some way like “A well-regulated militia being necessary for a free state, Congress shall not infringe the right of the states to arm the militia.” However, this interpretation of the amendment would have worked a radical transformation of Congress’s power over the militia.  The Constitution addresses the militia in Article I, Section 8.  It states “The Congress shall have the power … To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.”

Thus, it was Congress’s responsibility, not the states, to organize and arm the militia, with the states having only the responsibility to appoint officers and train the militia as Congress mandates.   The militia is not treated by the Constitution as a creature of the several states, but of the nation as a whole to be organized, armed and disciplined by Congress, while being trained by the states as Congress directs.

Congress has in fact exercised this authority.

Title 10 of the United States Code, Section 311 defines the militia of the United States with certain exceptions as “all able-bodied males at least 17 years of age and … under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and … female citizens of the United States who are members of the National Guard.”  The National Guard is the organized militia and the unorganized militia consists of those militia members not in the Guard.  In the Second Militia Act, passed in 1792, Congress specified the arms militia members were to have.  It was incumbent on militia members to report for training and duty with their own arms. The second amendment did not change Congress’s authority over the militia, nor was that the intent of the amendment.  Most notably, the second amendment did not provide that the states would or could arm the militia.  If that were the meaning of the second amendment, then states could be free to arm the militia in any way they saw fit.  States could for instance under the collective rights view of the second amendment, authorize each member of the unorganized militia to own a fully automatic weapon such as the M-16.  That would raise issues with respect to the provisions of the National Firearms Act of 1934, which greatly restricts the ownership and transfer of automatic weapons.  States could also abrogate many other federal firearm restrictions. It is certainly the case that some founders, such as Elbridge Gerry of Massachusetts, feared that Congress would neglect its responsibility to arm the militia.  And so it is not an unreasonable view that a primary purpose of the second amendment was to ensure that the militia would not be disarmed by taking guns away from the people who constituted the militia.

However, that view is perfectly consistent with the wording of the operative clause, “the right of the people to keep and bear arms shall not be infringed.”  The amendment thus ensured that there could be a body of the people armed and available to serve in the militia.  It had nothing to do, however, with transferring to the states the right to arm or specify the arming of the militia.  That remains the prerogative of Congress. Review of the legislative history of the second amendment confirms that it was designed to protect an individual right of the people generally to possess and carry arms. When Madison initially introduced the various proposed amendments that would later become the Bill of Rights, he proposed to insert the bulk of them, including what would later become amendments one through five, part of the sixth amendment, and amendments eight and nine, into Article I, Section 9, between Clauses 3 and 4.  His speech to Congress can be found here.

This is the portion of the Constitution which limits Congressional power over individuals.  Clause 3 is the prohibition on Bills of Attainder and ex post facto laws.

Clause 4 is the limitation on the imposition of taxes directly on individuals as oppose to excise taxes on economic transactions.  This clause has been substantially abrogated by the sixteenth amendment, authorizing the federal government to tax incomes.  In other words, Madison proposed to put these amendments into that part of the Constitution that protected individual rights of the people from the federal government. The context of Madison’s original introduction to Congress of the Bill of Rights, including the second amendment, is powerful evidence supporting the conclusion that the right to keep and bear arms was intended to confirm an individual right of the people to arms.

Madison did not propose to place the second amendment in that part of the Constitution that governs Congress’s power over the militia. 

The obvious reason is that Madison was seeking to protect an individual right to keep and bear arms, not some undefined right of the states to arm or control militia members within their borders.  Indeed, it was Madison himself who coined the phrase “Bill of Rights” to refer to the amendments he was proposing, including what would become the second amendment.  States do not have rights.  They have powers.  Individuals have rights.  In any event, the second amendment guarantees in its own words a right of the people, not a right of the states.

How the Obama administration turn their own scandals into Republican conspiracy theories.

How the Obama administration turn their own scandals into Republican conspiracy theories.

As scandals grow to become the norm throughout the Obama administration, his handling of these events also develops a common formula, a checklist of controversy diffusion and blame shifting to Republicans for creating a conspiracy. There are six steps:

1. Feign ignorance: Remember the IRS Scandal, Fast and Furious, Benghazi, AP phone records, Obamacare failures and lies and the VA scandal? The President claimed he learned about these issues from newspaper reports. As if the president is just some normal Joe, sans a staff of advisers feeding him up-to-the-minute information regularly.  This is part and parcel to the planning process before the event happens.
2. Feign anger: Upon the president allegedly learning of a scandal, he then proceeds to profess his shock and anger about the issue. Even as news reports show that he knew about the issue for a long time his public rhetoric is designed to call them into question.  The President lie on public television?  Oh! No!
3. Feign responsibility: The president will feign the act of falling on his own sword, repeatedly stating that the buck stops with him.  This while no one is supposed to notice he is doing nothing and firing no one.
4. Delay & Distraction: Obama will profess his interest in working with investigators and the Republican leaders on these matters. However, after a sizable amount of unnecessary obfuscation, withholding of information and stonewalling by the president and his staff, nothing happens. No one pays and no one loses his or her job. Eventually, a few people announce their “retirement” and a few people take paid administrative leave at most.  Usually, he manufactures an event that enables the friendly MSM to change focus and distract.
5. Dismiss: After waiting a period of time for things to blow over, even while questions are still being raised regarding the lack of progress in an investigation, the president pronounces the whole thing to be a partisan and “phony scandal.” This allows the administration to dismiss, mock, marginalize the issue, and allow the president get back to his golf game.
6. The Right Wing Conspiracy Theory:  Then the talking points are sent out to the Democrat talking heads that lay the whole thing at the feat of the Conservatives and GOP: "...this is nothing but a right wing conspiracy theory and a waste of the public's time....."

The urgent problem of stopping lawless president

The urgent problem of stopping lawless president

by George Will

What philosopher Harvey Mansfield calls “taming the prince” – making executive power compatible with democracy’s abhorrence of arbitrary power – has been a perennial problem of modern politics. It is now more urgent in America than at any time since the Founders, having rebelled against George III’s unfettered exercise of “royal prerogative,” stipulated that presidents “shall take care that the laws be faithfully executed.”

Serious as are the policy disagreements roiling Washington, none is as important as the structural distortion threatening constitutional equilibrium. Institutional derangement driven by unchecked presidential aggrandizement did not begin with Barack Obama, but his offenses against the separation of powers have been egregious in quantity, and qualitatively different.

Regarding immigration, health care, welfare, education, drug policy and more, Obama has suspended, waived and rewritten laws, including the Affordable Care Act. ACA required the employer mandate to begin this year. But Obama wrote a new law, giving to certain-sized companies a delay until 2016, and stipulating that other employers must certify they will not drop employees to avoid the mandate. Doing so would trigger criminal perjury charges; so, he created a new crime, that of adopting a business practice he opposes.

Presidents must exercise some discretion in interpreting laws, must have some latitude in allocating finite resources to the enforcement of laws, and must have some freedom to act in the absence of law. Obama, however, has perpetrated more than 40 suspensions of laws. Were presidents the sole judges of the limits of their latitude, they would effectively have plenary power to vitiate the separation of powers.

Congress cannot reverse egregious executive aggressions such as Obama’s without robust judicial assistance. It is, however, difficult to satisfy the criteria that the Constitution and case law require for Congress to establish “standing” to seek judicial redress for executive usurpations injurious to the legislative institution.

Courts, understandably fearful of being inundated by lawsuits from small factions of disgruntled legislators, have been wary of granting legislative standing. However, David Rivkin, a Washington lawyer, and Elizabeth Price Foley of Florida International University have studied the case law and believe standing can be obtained conditional on four things:

1.    That a majority of one congressional chamber explicitly authorize a lawsuit.

2.    That the lawsuit concern the president’s “benevolent” suspension of an unambiguous provision of law that,

3.    by pleasing a private faction,

4.    precludes the appearance of a private plaintiff.

That Congress cannot administer political self-help by remedying the presidential action by simply repealing the law. And that the injury amounts to nullification of Congress’ power.

Hence the significance of a House lawsuit, advocated by Rivkin and Foley, that would unify fractious Republicans while dramatizing Obama’s lawlessness. The House would bring a civil suit seeking a judicial declaration that Obama has violated the separation of powers by effectively nullifying a specific provision of a law, thereby diminishing Congress’ power. Authorization of this lawsuit by the House would give Congress “standing” to sue. Congress’ authorization, which would affirm an institutional injury rather than some legislators’ personal grievances, satisfies the first criterion. Obama’s actions have fulfilled the rest by nullifying laws and thereby rendering the Constitution’s enumeration of Congress’ power meaningless.

The House has passed Rep. Trey Gowdy’s (R-South Carolina) bill that would guarantee expedited consideration by federal courts of House resolutions initiating lawsuits to force presidents to “faithfully execute” laws. But as a bill, it is impotent unless and until Republicans control the Senate and a Republican holds the president’s signing pen.

Some say the judicial branch should not intervene because if Americans are so supine that they tolerate representatives who tolerate such executive excesses, they deserve to forfeit constitutional government. This abstract doctrine may appeal to moralists lacking responsibilities. For the judiciary, it would be dereliction of the duty to protect the government’s constitutional structure. It would be perverse for courts to adhere to a doctrine of congressional standing so strict that it precludes judicial defense of the separation of powers.

Advocates of extreme judicial quietism to punish the supine people leave the people’s representatives no recourse short of the extreme and disproportionate “self help” of impeachment. Surely courts should not encourage this. The cumbersome and divisive blunderbuss process of impeachment should be a rare recourse. Furthermore, it would punish a president for anti-constitutional behavior, but would not correct the injury done to the rule of law.

New Political Leadership Is No Substitute for Individual Human Action

New Political Leadership Is No Substitute for Individual Human Action

by The Daily Bell

Is this Obama's 'malaise' moment? ... President Barack Obama's situation is getting perilously close to President Jimmy Carter's in 1979. Americans see little evidence of an economic recovery, more and more workers are giving up hope of ever finding a job, the burden of student loan debt — now larger than credit-card debt — is crushing the hopes of young people, the president's signature achievement, healthcare reform, is broadly unpopular, our borders are overrun by migrant children, Iraq is falling apart, Syria and Ukraine are in turmoil and the president seems hapless and ineffectual. – Reuters

Dominant Theme: History repeats itself. When the president goes bad, so does the country.

Free-Market Analysis: So we learn once more that the US president stands as a proxy for the entire country.

If the president, you see, isn't doing his job, then the entire country of some 300 million people can sink into a "malaise." When the president is vibrant, so are you. When the president isn't doing what he needs to do, you feel lethargic and hopeless.

Reuters puts it as bluntly as possible: "Americans become deeply disturbed if they see events spinning out of control and their elected leaders incapable of managing them."

Is that so, dear reader? Do you look first to President Barack Obama to solve your problems? Is your first instinct when happening upon an unexpected challenge to ponder ways that you can depose your president? It seems, well ... patronizing to state so bluntly that US citizens, members of a once-proud republic, can only ponder a solution based on political change when faced with personal or societal vicissitudes.

Here's more:

"Malaise" was the term used in 1979 to describe the deep pessimism Americans felt about the way things were going in the country. That year, inflation was soaring, unemployment was rising, the United States faced a debilitating energy crisis, a tax revolt had broken out, Americans were waiting in long gas lines, and Iran had a revolution, further roiling the Middle East. Carter seemed hapless and ineffectual.

... In 1979, Gallup reported deteriorating public confidence in the presidency, Congress, the U.S. Supreme Court, public schools, newspapers, banks, big business, organized labor, even the military and organized religion. The average percentage of Americans expressing "a great deal" or "quite a lot" of confidence in these institutions in 1979? Forty-eight. And what is it now? Thirty.

Americans become deeply disturbed if they see events spinning out of control and their elected leaders incapable of managing them. That was the perception that doomed Carter. It is now becoming a problem for Obama.

The American public actually agrees with most of Obama's policies, particularly his caution in making foreign-policy commitments. They are also terrified of what Republicans would do if they ever took over. But the public doesn't see any results. Congress does nothing, and whatever Obama is doing — on the economy, on immigration, in Iraq, in Ukraine — is not making a lot of difference.

... Obama is getting 78 percent support from Democrats and just 9 percent from Republicans — a whopping 69 point difference ... Obama's problems probably doom his vice president, Joe Biden, as well. If Biden were the Democratic nominee in 2016, voters would see it as a third term for Obama.

Is there anyone out there who looks like a strong leader? Right now, people don't know too much about the potential Republican contenders. But they know a great deal about Hillary Clinton. And what they see is a sharp contrast with Obama.

On every one of nine issues tested in a CNN poll this month, the public thinks Clinton would do a better job than Obama ... Gallup recently asked Americans to rate the five living presidents. Obama was rated the worst. Carter and George W. Bush were only slightly higher. Which living president do people consider the best? Fellow named Bill Clinton. Another Clinton? That doesn't sound too bad.

Is this a serious analysis? We have trouble believing the columnist was actually paid to write an article concluding that Hillary Clinton would be a "strong leader" that would unite the country.

In fact, Ms. Clinton is not a uniter but a compulsive divider. She is instinctively a polarizing person, a cynic of great political tenure who believes it "takes a village" to raise a child. In other words, she believes the state must provide the solution to the woes of the human condition.

This Reuters article – which is surely in line with the larger Reuters philosophy – takes the same view. If people are to live happily and prosperously, they must do so under a strong "leader." Most of what Reuters writes or reports is underpinned by this sort of perspective.

Of course it is unclear what makes a leader "strong," just as it is unclear what there was about Barack Obama that indicated to voters that he would be a "good" president capable of leading the United States in the direction of renewed greatness.

Oh, and by the way ... really, there is no United States. There are only people living in a given region, united by culture but confused to a degree about how societies and economies work.

Many people, too many unfortunately, believe strong leadership – even an authoritarian approach – is necessary for a cohesive and prosperous society. But free-market analysis helps provide clarity: It is individual human action that creates the best results.

This approach was codified by FA Hayek as "spontaneous order" – a situation in which people elaborate on the economic and industrial culture around them without prompting or top-down organization. We can see this most clearly of late as regards the Internet. Here is a facility that hundreds of thousands have contributed to without coercion or even coordination. People simply decided to contribute, learned how to do so on their own and did so.

What is sad, and inevitable, is that like any other great human advance, once the Internet is sufficiently evolved, the balance begins to tip and people begin to see more advantage in taking it over than leaving it alone.

It is mostly an organized group of internationalists that see the advantages of controlling the Internet and the alternative media that has done so much to expose the "directed history" of the modern era.

There are monied elements that will apparently stop at nothing to create an ever-closer world hierarchy and these are the same individuals and groups that promote the idea of "strong leadership." But it is individual human action, not "strong leaders" running the modern age's vast, regulatory democracies, that build healthy societies.

History shows us this is so. There is much about the world that is freer today than yesterday, thanks in large part to the Internet and the information it has provided. But there is much that is less free, too.

A globalist group has seen their plans exposed and their biases presented; they are moving as quickly as possible it seems to take further control of the West's and world's economy via such programs as CAFTA and GAFTA and other internationalist treaties and facilities. These provide elements of financial control that will make economic – and therefore personal – freedom more difficult.

Recall, too, that the world is in the grip of an unprecedented inflation, and that this central banking phenomenon is entirely purposeful and is aimed at creating a continued "Wall Street Party" to further raise equity valuations.

In fact, given this program, there is much opportunity amidst the current challenges, including investment opportunities. But in the longer term, we believe much of what seems attractive today will come crashing down tomorrow as asset bubbles collapse once more.

It may be fashionable to analyze the "malaise" of a given nation-state and how a national leader is inducing it, but this is a kind of fantasy, a combining of various dominant social themes to arrive at a conclusion that has no more veracity than the promotional methodologies themselves.

Conclusion

There are many challenges ahead, but one must look as much as possible to one's own resources – familial and communal – to solve them. Political "leadership" will not.