from the Congress Action newsletter
by: Kim Weissman
August 26, 2001
Because of Ashcroft's deviation from politically correct dogma, Common Cause and the Brady Center to Prevent Gun Violence have filed an ethics complaint against the Attorney General, claiming that his "interpretation directly contradicts the stated position of his client, the United States of America, on the meaning of the Second Amendment." Their complaint specifically refers to the case of United States v. Emerson [see below], now on appeal in the Fifth Circuit Court of Appeals, in which the Clinton administration explicitly denied that such an individual right exists.
In a press release announcing the ethics complaint, Common Cause president Scott Harshbarger proclaimed, "What's at stake here is the integrity of the U.S. Department of Justice." In their complaint, Common Cause and the Brady Center relied on an opinion by Sam Dash, that Ashcroft's conduct was "an act of disloyalty to his client, the United States". That would be the same Sam Dash who during Clinton's impeachment resigned as ethics advisor to Independent Counsel Starr, and publicly criticized Starr for accepting the invitation to testify before the House Judiciary Committee — was that an act of loyalty to Starr? Apparently, consistency with a past attempt to subvert liberty is more important than loyalty to the Constitution and to an oath of office to uphold the Constitution. ("I believe it is clear that the Constitution protects the private ownership of firearms for lawful purposes. …when I was sworn as Attorney General of the United States, I took an oath to uphold and defend the Constitution. That responsibility applies to all parts of the Constitution, including the Second Amendment." — Attorney General John Ashcroft)
In July, the Violence Policy Center (VPC) issued a report titled "Shot Full of Holes, Deconstructing John Ashcroft's Second Amendment". The ultimate goal of gun ban extremists is to totally disarm all private individuals — obviously believing that violent crime is the fault of honest people owning guns. To accomplish this ultimate goal, gun banners believe that they must eliminate (or in VPC's terminology, "deconstruct", the term fashionable in academia which means using apparently logical arguments to "prove" that black is really white) the Second Amendment. The VPC says that Ashcroft's letter "is an astonishingly inadequate piece of legal reasoning and an exemplar of wishful, and at times bizarre, revisionist history." A sign of the desperation of the VPC is their insulting attempt to equate "The NRA and gun criminals" (the VPC apparently sees no difference between the two) who "will seek to have the Second Amendment incorporated against the states…". As though "gun criminals" care about the Constitutional doctrine of incorporation. But the VPC's reliance on deconstructing Ashcroft and the Second Amendment depends on a compound of fundamentally flawed ideas about the nature of, and a massive expansion of the legitimate power of, government; and as such carries implications that go far beyond the firearms issue and go to the very essence of our individual liberty.
The argument of the gun banners is simple: Without the Second Amendment, there is no individual right to keep and bear arms. Thus "deconstruct" the Second Amendment, and the individual right disappears. Given the wealth — and remarkable unanimity — of the expressions of intent by the Founders of this country and by their contemporaries, as well as philosophical discourses on the inherent right of individual self defense extending back fifteen hundred years to Justinian's "Digest of Roman Law", twisting the Second Amendment into a collective right only, rather than an individual right, and nullifying the age-old right of self defense, is a monumental and ultimately futile task. For even if the gun banners succeed in hoodwinking a majority of the public with their collectivist interpretation of the Second Amendment (a real possibility given the propaganda and the lack of discussion about the requisites of individual liberty in education today), and even if they succeed in convincing a majority of the people that they have no right to defend themselves or their families or homes against criminal attack, the attempt to eliminate the Second Amendment as a barrier to total civilian disarmament (with government alone retaining a monopoly of force) is still fundamentally flawed.
Fundamental Flaw Number One:
To believe that without the Second Amendment there is no individual right to keep and bear arms, one must believe that that right was granted to citizens by the Second Amendment. It is basic to the Constitution and the Bill of Rights, nor has it ever been questioned by any court or Constitutional scholar, that the Bill of Rights did not grant any new rights — it protected rights that already existed.
The First Amendment, for example, did not grant to citizens of the new nation a new right to worship as they saw fit, a new right to freedom of speech, or a new right to peaceably assemble — those rights already existed, and the First Amendment merely protected those pre-existing rights. Since it is beyond dispute that individual citizens did own firearms at the time the Bill of Rights was ratified, and did so lawfully, the right of individuals to lawfully own firearms already existed.
A recent study by Michael Bellesiles (the methodology and data of which was seriously questioned by other academics) attempted to prove, using inheritance and estate records from the Revolutionary period, that the individual ownership of firearms at that time was not as widespread as previously believed. But even Bellesiles did not attempt to claim that nobody owned firearms at the time of the Revolution, or that everyone who did own firearms, did so illegally. Such claims would clearly have been too ridiculous even for die-hard gun banners to believe. So even if we grant Bellesiles' thesis that the number was fewer than previously thought, even he would have to admit that there were at least some private individuals who lawfully possessed firearms at the time of the ratification of the Constitution and the Bill of Rights. Which means that the individual right to keep and bear arms pre-existed the Second Amendment, and existed (then and now) independently of the Second Amendment, which just added an additional layer of protection to that right.
Fundamental Flaw Number Two:
Since the Second Amendment did not grant the individual right to keep and bear arms (that right already existed), if we are to accept the gun banners' argument that the right no longer exists we must ask: When was that right revoked?
If the federal government at some point revoked that individual right, it must have done so by a law enacted by congress and signed by a president. And in order to enact a law — any law — the federal government must have the legitimate authority to do so. Where is that authority? Once again, we go back to the fundamental nature of the Constitution.
When it was ratified, the Constitution created a new government for the United States, replacing the form of government existing prior to 1787. Some delegates nominated to the Constitutional Convention — Patrick Henry most prominent among them — refused to attend that Convention, believing that the charter from the States under which the delegates convened did not permit them to void the existing government. But if we are to accept the present Constitution as valid at all, we must accept that those delegates in Philadelphia in 1787 started from scratch and created a new government.
Since the gun banners' presume that the federal government at some point in time exercised the power to revoke the individual right to keep and bear arms, we must ask: What powers were in fact granted to the federal government when the Constitution was ratified? To quote James Madison, the Father of the Constitution,
Those delegated powers are enumerated in the Constitution. To again quote Madison ("The Virginia Report" to the Virginia House of Delegates, 1799):
This is the heart of the issue — Where in the Constitution is the federal government granted the authority to disarm individual citizens, who have not forfeited the protection of the law by violating the law? Because if the Constitution did not "expressly delegate" authority to the federal government to do something, then "the federal government is destitute of all such authority". Where in the Constitution is the federal government expressly delegated the authority to revoke the individual right to keep and bear arms? The answer is — nowhere. So even if we grant the assumption that at some point the federal government did revoke the individual right to keep and bear arms, it is clear that such a revocation was wholly illegitimate, and is thus null and void, because the federal government was never granted any such authority.
But the gun banners like to say that they don't seek to revoke the right to keep and bear arms, just to modify that right in the interest of public safety. They must then be prepared to state unequivocally that they accept the individual right to keep and bear arms. Are they willing to do so? On the contrary, their every argument in congress and in the courts, and their public statements, prove that they refuse to acknowledge any such right, and that a total ban is what they demand:
Fundamental Flaw Number Three:
It is clear that the individual right to keep and bear arms pre-existed the Constitution and the Bill of Rights. It is clear that the Constitution did not grant to the federal government the authority to revoke the individual right to keep and bear arms (the federal government certainly has the raw power to enact any law it chooses regardless of any Constitutional restraint on its authority, but when it does so — when it legislates beyond its legitimate authority — it does so without Constitutional legitimacy). So for the gun ban argument to have any validity at all, it must be assumed, contrary to the explicit words of James Madison cited above, that the federal government can legitimately take actions that go beyond the authority expressly delegated to it by the Constitution, and beyond the powers both necessary and proper to carry into execution those express powers.
What this means, according to gun banner logic, is that the Constitution is wholly irrelevant to limit the powers that can be properly exercised by the federal government. This is the most dangerous presumption of the whole argument, with implications for the utter destruction of our freedom that go beyond the individual right to keep and bear arms.
Simply put, this argument claims that the federal government has the legitimate authority to do anything that it chooses to do. Anything at all — what the Founders despised as the evil of "arbitrary" power. Thus we can understand the anger of the gun ban totalitarians whenever a federal court constrains arbitrary congressional power, or puts limits on the agenda to disarm honest individuals. They want to deny federal court appointments to any judges who will limit the power of congress — which means that they like the idea of a federal government of unlimited power, a government with the arbitrary power to do anything at all. A government unconstrained, that can do anything it wants, is an unaccountable government of raw arbitrary power, and is not a government of laws. That is the very essence of tyranny.
FOR MORE INFORMATION…
Violence Policy Center ("Shot Full of Holes,
Deconstructing John Ashcroft"):
In depth on United States v. Emerson
27 aug 2001