In the following post, I feel it necessary to re-cite the cases of my post from
"Legislating or treatying away our Constitutional Rights, such as under the Second Amendment? Hold it! Better read what the Supreme Court has to say first!" http://www.brianroysinput.blogspot.com/2012/12/legislating-or-treatying-away-our.html
Gun ownership to a United States Citizen is not only a legal right, but is
a Constitutionally mandated assurance against centralized Army occupation aimed
at taking away our First, Third, and Fourth Amendment rights as well.
Senator
Dianne Feinstein (D-CA) is on record incorrectly stating that if she could get a 51%
majority vote to confiscate every "assault rifle" in America, in
private or civilian hands, she would do it.
When you think about it in
the way that Progressives will argue, since a bullet flies out of the barrel,
it assaults its object. Therefore, it would not be just an assault weapons ban,
it would be every gun in America that would be banned, including something as
antiquated as muskets.
But what has the United States
Supreme Court said on this issue?
Miranda v.
Arizona, 384 U.S. 436 (1966) @ 491 "Where rights secured by the Constitution are involved,
there can be no rulemaking or legislation which would abrogate them.”
Almeida-Sanchez v. United States,
413 U.S. 266 (1973) @ 272 "It is clear, of course, that no Act
of Congress can authorize a violation of the Constitution."
United
States v. Brignoni-Ponce, 422 U.S. 873 (1975) @ 877 "But "no Act of Congress can authorize a violation of
the Constitution," Almeida-Sanchez, supra at 413 U. S. 272, "
This also extends to any "end-run" attempt made by Congress in ratifying a United Nations Small Arms Treaty that requires gun confiscation of its Citizens.
Marbury
v. Madison, 5 U.S. (1 Cranch) 137 (1803)
@ 176 "The question whether an act repugnant to the
Constitution can become the law of the land is a question deeply interesting to
the United States, but, happily, not of an intricacy proportioned to its
interest. It seems only necessary to recognise certain principles, supposed to
have been long and well established, to decide it.
... The powers of the Legislature are defined
and limited; and that those limits may not be mistaken or forgotten, the
Constitution is written.
@177 "Certainly all those who have framed written Constitutions
contemplate them as forming the fundamental and paramount law of the nation,
and consequently the theory of every such government must be that an act of
the Legislature repugnant to the Constitution is void.
@178 "... the Courts are to regard the Constitution, and the
Constitution is superior to any ordinary act of the Legislature...."
@179
... it is apparent that the framers of the
Constitution
@180
contemplated that instrument as a rule for the
government of courts, as well as of the Legislature.
Thus, the particular phraseology of the Constitution of the
United States confirms and strengthens the principle, supposed to be essential
to all written Constitutions, that a law repugnant to the Constitution is void,
and that courts, as well as other departments, are bound by that instrument.
Doe
v. Braden, 57 U.S. (16 Howard) 635 (1853) @ 657 “By the Constitution of the United States, the President has
the power, by and with the advice and consent of the Senate, to make treaties
provided two-thirds of the Senators present concur. ... And the Constitution
declares that all treaties made under the authority of the United States shall
be the supreme law of the land. The treaty
is therefore a law made by the proper authority, and the courts of justice have no right to annul or
disregard any of its provisions unless
they violate the Constitution of the United States."
The Cherokee Tobacco, 78 U.S. (11 Wallace) 616 (1870) @ 620 “The second section of the fourth article of the
Constitution of the United States declares that
"This Constitution and the
laws of the United States which shall be made in pursuance thereof, and all
treaties which shall be made under the authority of the United States, shall be
the supreme law of the land."
It need hardly be said that a treaty
cannot change the Constitution or be held valid if it be in violation of that
instrument."
Geofroy v. Riggs, 133 U.S. 258 (1890) @ 267 “The treaty power, as expressed in the
Constitution, is in terms unlimited except by those restraints which are
found in that instrument against the action of the
government or of its departments, and those arising from the nature of the
government itself and of that of the states.
It would
not be contended that it extends so far as to authorize what the
Constitution forbids, or a change in the character of the government, or in
that of one of the states, or a cession of any portion of the territory of the
latter, without its consent.” [Case citations omitted]
United States v. Wong Kim Ark, 169 U.S. 649 (1898) @ 701 “… as will
appear by tracing the history of the statutes, treaties and decisions upon that
subject -- always bearing in mind that statutes enacted by Congress, as well
as treaties made by the President and Senate, must yield to the paramount
and supreme law of the Constitution.”
State of Missouri v. Holland, 252
U.S. 416 (1920)
@ 432 “It is said that a treaty cannot be valid if it infringes the
Constitution, that there are limits, therefore, to the treaty-making
power, and that one such limit is that what an act of Congress could not do
unaided, in derogation of the powers reserved to the States, a treaty
cannot do.
Asakura v. City of Seattle, 265 U.S. 332 (1924) @ 341 “A treaty made under the authority of
the United States "shall be the supreme law of
the land, and the judges in every state shall be bound thereby, anything in the
constitution or laws of any state to the contrary notwithstanding." Constitution, Art. VI, § 2.
The
treaty-making power of the United States is not limited by any express
provision of the Constitution, and, though it does not extend "so far as
to authorize what the Constitution forbids..." [Case citations omitted]
United States v. Minnesota, 270 U.S. 181 (1926) @ 208 “The
decisions of this Court generally have regarded treaties as on much the same
plane as acts of Congress, and as usually subject to the
general limitations in the Constitution….”
Reid v. Covert, 354 U.S. 1 (1956)
@ 16 “... The obvious and decisive answer to this, of
course, is that no agreement with a foreign nation can confer power on the
Congress, or on any other branch of Government, which is free from the
restraints of the Constitution.
Article VI, the Supremacy Clause of the
Constitution, declares:
"This Constitution, and the
Laws of the United States which shall be made in Pursuance thereof, and all
Treaties made, or which shall be made, under the Authority of the United
States, shall be the supreme Law of the Land . . ."
There is nothing in this language which intimates that
treaties and laws enacted pursuant to them do not have to comply with the
provisions of the Constitution. Nor is there anything in the debates which
accompanied the drafting and ratification of the Constitution which even
suggests such a result. These debates, as well as the history that surrounds the
adoption of the treaty provision in Article VI, make it clear that the reason
treaties were not limited to those made in "pursuance" of the
Constitution was so that agreements made by the United States under the
Articles of Confederation, including the important peace treaties which
concluded the Revolutionary
@17 War, would remain in effect. [Footnote
31] It would be manifestly contrary to the
objectives of those who created the Constitution, as well as those who were
responsible for the Bill of Rights -- let alone alien to our entire
constitutional history and tradition -- to construe Article VI as permitting
the United States to exercise power under an international agreement without
observing constitutional prohibitions. [Footnote
32] In effect, such construction would permit
amendment of that document in a manner not sanctioned by Article V. The
prohibitions of the Constitution were designed to apply to all branches of the
National Government, and they cannot be nullified by the Executive or by the
Executive and the Senate combined.
There is
nothing new or unique about what we say here. This Court has regularly
and uniformly recognized the supremacy of the Constitution over a treaty. [Footnote
33] For example, in Geofroy v. Riggs, 133 U. S. 258, 133 U. S. 267, it declared:
"The treaty power, as expressed in the Constitution,
is in terms unlimited except by those restraints which are found in that
instrument against the action of the government or of its departments, and
those arising from the nature of the government itself and of that of the
States. It would not be contended that it extends so far as to authorize
what the Constitution forbids, or a change in the character of the
@18 government, or
in that of one of the States, or a cession of any portion of the territory of
the latter, without its consent."
This Court has also repeatedly taken the position that an
Act of Congress, which must comply with the Constitution, is on a full parity
with a treaty, and that, when a
statute which is subsequent in time is inconsistent with a treaty, the statute
to the extent of conflict renders the treaty null. [Footnote
34] It
would be completely anomalous to say that a treaty need not comply with the
Constitution when such an agreement can be overridden by a statute that must
conform to that instrument.”
On January 9, 2012, putative Vice President Joe
Biden announced that there are "Executive Orders" that he claims will
be used in place of legislation to regulate gun control.
If putative Vice President has any notion of seeing
the Second Amendment revoked, such an Executive Order IS unconstitutional. If such an Executive Order to over-rule the
U.S. Constitution is implemented by force of arms, such as forced armed home
invasions and confiscation, then we as a nation will quickly descend into
example after example where there will be unrequited violence.
There have been bans on a designated category of
automated rifles, called "assault" rifles, in the past: but such an
action must come through the Legislature...it cannot come via Executive Order.
The Legislation necessary, which must come through
Congress, to control "gun safety" would be to Legislate high capacity
magazines to 20 rounds or less in both rifles and handguns AND to enforce
existing gun laws and background checks already enacted, might be the
alternative solution to Gun Control Legislation.
Banning high capacity magazines has been part of what Governor Andrew Cuomo views is part of a comprehensive gun legislation package,
so why not start and mostly end there?
I would NOT endorse a maximum magazine capacity of less than 20 rounds, even though it is within the power of Congress to do so.
Unfortunately,
instead of a peaceful and law-abiding vast majority of gun owning American
Citizens, the Media and certain anti-gun coalitions or such advocates
http://www.infowars.com/alan-dershowitz-fears-alex-jones/
seek to use the temper tantrum of Alex Jones on the CNN Piers Morgan program on or about January 7, 2012
http://www.infowars.com/alan-dershowitz-fears-alex-jones/
seek to use the temper tantrum of Alex Jones on the CNN Piers Morgan program on or about January 7, 2012
as justification on why Americans should not have the right to own a semi-auto rifle.
Alex Jones decided to use his debate to solidify his audience's loyalty to him personally as an angry spokesman. That is NOT what America needs right now.
We need a strong and intelligently reasoning voice, which is able to say why we should be able to own a .223 Sporter "Assault Rifle" or whatever gun they wish to say we have no right to own. The answer is in the Bill of Rights. The first Amendment tells "We the People" that they have the right to "freedom of religion [with]...the free exercise thereof", “freedom of speech", and "freedom of the press" (freedom of speech OR of the Press), “the right of the people peaceably to assemble", the right "to petition the Government for a redress of grievances."
Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Contrary
to Democrats chastising or ignoring the right of the people “to petition the
Government for a redress of grievances" is just as co-equal as the right
of free speech, the right to freedom of religion NOT from religion. The United States Constitution and the decisions of the United States Supreme Court informs us that we have
more power than they have a clue about.
In order
to protect these rights from being squashed by a corrupt central authority, the
Second Amendment was written.
Amendment II
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Amendment II
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Originally, when dealing with just
the militia aspect, it was envisioned to
arm that of the Posse Commitatus and Local Municipal and Regional Individuals
banded together to be called up to, in an orderly fashion, repel and defeat:
Indian uprisings, foreign armies or Shanghai parties (of any type landing on our shores), or
pirates, robber bands, organized crime or revolt. The organized militia had for
its Executive Officer, the Governor of the State in which they belonged as its
citizens, and this chain of command was the example by which a professional
centralized army of the United States should have as its Commander in Chief, a
civilian President who was- according to our Constitution, to be -- a natural born citizen of the United States, born to
a U.S. Citizen father and born on United States soil. Obama had a foreign father who never became a
U.S. citizen, and even he has claimed he was never born here until after he
became a U.S. Senator. Even the Kenyan Government has verified his earlier claims that he was born in Kenya, and Obama to this day refuses to enter any birth records under penalty of perjury in a United States Court of Law. Curious.
Amendment III
No Soldier shall, in time of peace be quartered in any house, without
the consent of the Owner, nor in time of war, but in a manner to be
prescribed by law.
Amendment IV
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall
not be violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.
Amendment IX
The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people.
Amendment X
The powers not delegated to the United States by the Constitution,
nor prohibited by it to the States, are reserved to the States
respectively, or to the people.
The Second
Amendment where "the right of the people to keep and bear arms shall not be infringed" is a guarantor that the civilian population would have those kind of
pistols and rifles that are well enough to repel an actual army, whether it is
foreign invaders, or even the presumption of that of our own troops in times of Peace seeking to forcibly
barrack themselves in the homes of the Civilian population against their will to house them.
So when
the Third Amendment reads "No soldier shall, in time of peace be quartered
in any house, without the consent of the Owner, nor in time of war, but in a
manner to be prescribed by law"; the Third Amendment presupposes that such
violations could -- LEGALLY (under the Constitution's intent) -- be fought off by the owner, against even our own Army, by the
use of a gun, for it says NOT just a militia may own a firearm, but "the
right of the PEOPLE to keep and bear arms, shall not be infringed" in the Second Amendment. That means, any United
States Citizen -- (felons lose their
citizenship or have it in a suspended state of revocation, and are prohibited )
-- has the freedom and the legal right to own a .223 semi-auto rifle or any
firearm powerful enough to fight off members of any military in the world (including our own if they clearly violate the Constitution). Since the U.S. Army uses a .223 caliber in its general issue, the focus would then shift to the question of magazine capacity for semi-autos to be just enough for home defense against other armed intruders or a mob, and only this issue of magazine capacity, then, would be the issue of any intelligent discussion or compromise.
Again, you can regulate the Rifle magazine down to 20 and preferably no less that 10-15 rounds through proper Legislation, but I would not suggest a magazine capacity less than 20.
Again, you can regulate the Rifle magazine down to 20 and preferably no less that 10-15 rounds through proper Legislation, but I would not suggest a magazine capacity less than 20.
We are at all times to find what legal
PEACEFUL recourse we can...but if Obama signs an executive order or Congress by
a mere vote says we no longer have the right to own a gun, and anyone tries to
carry out the order, THEY are the ones in violation of the Constitution, and I
would argue that we would have the need to seek an emergency injunction for relief to the
Supreme Court for a ruling that overturns such an act of illegal
legislating BEFORE we have to resort to NECESSARY passive or pro-active
resistance at any attempt of gun collection or gun seizure, because executive orders and alleged plenary powers of congress exercised with a 51% majority vote cannot over-ride the Constitution.
We have the Decisions of the Supreme Court itself telling us this.
It takes an Amendment to the Constitution by 2/3 of Congress and ¾ of the States ratifying such an Amendment to the Constitution authorizing any course of action that is to over-ride another Amendment to the Constitution.
We can very often prevent calamities and great conflict by using intelligent reason and intelligent argument in ADVANCE.
We have the Decisions of the Supreme Court itself telling us this.
It takes an Amendment to the Constitution by 2/3 of Congress and ¾ of the States ratifying such an Amendment to the Constitution authorizing any course of action that is to over-ride another Amendment to the Constitution.
We can very often prevent calamities and great conflict by using intelligent reason and intelligent argument in ADVANCE.
When the option of PEACE and the proper use of the rule of Law of all sides is available, we should prefer THAT option. Revolution, hypothetically, even when legally justified, should always be an option that must be used only when all the other options for the rule of law upon the Government to fulfill its obligation to follow its contractual promise, to abide by the Constitution between itself and its people, is beyond reconciliation or repair, and a new Government willing to abide by the original contract can be instituted by force of arms.
If the "illegal, but criminally in charge anyway " Obama White House has any sense, they will address the issue of "gun safety"at the very most by asking the Congress legislate gun magazine capacity to 20 round maximum capacity, and allow gun training clubs to have restricted use on site of greater capacity magazines and drums for training purposes, and sporting pleasure in target practice as well in their legislation.
It would be the very best of all scenarios if the Obama Administration saw the Second Amendment as sacrosanct, and would just leave it alone. My recommendation allows them that opportunity to do just that.
That's my input.
646-470-4295 or nick@gawker.com
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P.P.S.
Also check out Andrew Napolitano's article,
Individuals are sovereign – not the government
http://www.wnd.com/2013/01/individuals-are-sovereign-not-the-government/
Peace.
[Last updated January 10, 2012 to amend one sentence for clarification]
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