Categories
Constitution Coronavirus Truth

The Lack Of Constitutional Standing For Interstate Quarantines

By Dr. Julio Gonzalez

You can’t order quarantines forever, and at some point a state of medical emergency becomes a new reality.
 
In an article last updated yesterday, The Wall Street Journal reported that New York, New Jersey, and Connecticut have instituted a mandate requiring travelers from states they designate as “experiencing a surge in COVID-19 cases,” to observe a 14-day quarantine upon arrival.  
 
This mandate that took effect on midnight Wednesday carries with it varying consequences for non-compliance.  In New York, a first-time violation merits a fine of $2,000.00 with subsequent violations earning fines of $5,000.  Higher penalties would be enforced if the non-compliance caused harm.  In Connecticut, there will be no fine, and in New Jersey, the quarantine would take the form of an “advisory.”
 
There’s one overarching problem with these mandated quarantines.  They’re of questionable constitutional legality.  
 
Following our independence from England, our nation stood as an inept giant. Yes, it was young.  It was also financially broke, but perhaps even more importantly a powerless Congress led it.  Under the Articles of Confederation, our first system of government, the states created a very loose alliance of sovereigns, so loose in fact that they were able to impose harsh restrictions upon each other.  Each state could print its own currency, ignore other states’ currencies, and restricted interstate travel and commerce.  Protectionist laws casting advantages to those citizens living within each state at the expense of their fellow countrymen loomed large, and there was nothing Congress could do about it.  Such divisions could never work, and it is for this very reason that the nation’s leaders convened a Constitutional Convention with the aim of preventing the disintegration and fractionalization of the young confederacy.  Protections against limitations in travel and interstate commerce were chief amongst the corrective measures implemented in the new Republic’s founding document. 
 
Clearly, a state restricting an individual to a certain location for a fortnight simply because he or she is from a targeted state acts in a manner repugnant to interstate commerce and individual travel rights.  The Supreme Court was explicit in this regard when it decided Saenz v. Roe, (1999).  Here, the Court ruled that there are constitutionally prescribed travel protections including “the right of a citizen of one State to enter and to leave another State, the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second state, and for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State.”  Mandatory interstate quarantines violate all three.  
 
It is true that the governments may claim certain latitudes during times of crisis. For example, Congress is given the authority to suspend the privilege of Habeas corpus, “when in Cases of Rebellion or Invasion the public Safety may require.”  And the states are afforded certain liberties if “actually invaded, or in such imminent Danger as will not admit of delay.”  But these contentions do not apply to a pandemic.

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President Trump declared a health emergency regarding SARS-CoV-2 on March 11, over 90 days ago.  Since that time, we have been able to establish that there is no imminent exhaustion of our medical supplies.  Despite “surges” in certain states, the nation’s daily new-case rate has flattened. As of this writing, the nation’s daily death rate has not been this low since March 30.  In New York, arguably the state guilty of the nation’s worse COVID-19 mismanagement, there were a mere 742 new cases on June 23, the lowest since March 17, and the daily death rates rival those of March 22.  
 
In the meantime, in Florida, one of those states experiencing a surge, the number of new cases for June 24 was 5,511, but the number of deaths was 45.  And to add to the inconsistency in the data, New York carries a 1,611 death per million rate compared to Florida’s 153, and an active case per million rate of 294,660 compared to Florida’s 84,570.  
 
Adding to the absurdity, Florida presently has a quarantine still in place for visitors from New York similar to the quarantine New York implemented against Floridians on Wednesday, albeit it Florida’s is voluntary one, begging the question just who needs to be protected from whom?
 
As I explain in my book, Coronalessons, obtrusive interventions such as quarantines, shutdowns, and border closures only work to keep the virus out of a country.  But in America, the virus is already here. In Coronalessons, I also observe the Constitution, miraculous as it may be, is a very fragile document, easily ripped and irreparably destroyed.  The right to freely move from one state to another and engage in interstate commerce is one of the hallmarks of our Constitution. Although it may be appropriate to briefly restrict our interstate travel in the name of safety, morale, health, or welfare, prolonging these restrictions, as we are presently doing, threatens to hurt us much more than it will aid us.  
 
The only real interventions we can take until the development of a vaccine or definitive treatment is for the elderly and the infirm to observe social distancing measures, for all of us to engage in frequent hand-washing, surface sanitation and mask use when in public places.  More aggressive interventions are mere opportunities for governments and people in authority to extend their ambits of power.  It is time for us to end these random and capricious interstate quarantines.
 
Dr. Julio Gonzalez is an orthopaedic surgeon and lawyer living in Venice, Florida. He is the author of The Federalist Pages, The Case for Free Market Healthcare, and Coronalessons. He served in the Florida House of Representatives. He can be reached through www.thefederalistpages.com to arrange a lecture or book signing.


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Congress Constitution Rights Truth

Congress’s Behavior Police To Register Potential Future Criminals

By KrisAnne Hall

The TAPS Act is not the solution to gun violence many members of Congress are professing it to be. The unlimited and arbitrary authority this Act bestows upon an unaccountable bureaucracy of 24 people, combined with the language of double-speak and contradictions creating loopholes allowing completely unsupervised and unchecked authority, is reminiscent of the Sedition Act of 1798.

The TAPS act will create a brand new bureaucracy under the authority of the Department of Homeland Security. A non-elected bureaucrat will be authorized by Congress to appoint 23 other non-elected bureaucrats to “identify individuals who are exhibiting patterns of concerning behavior” and then to “manage” those Americans.

The sole purpose of this bureaucracy of 24 will be to create State and federal behavioral policing body ruling over the perceived behavior of the American people — a KGB-style agency not only monitoring the behavior of Americans, but also functioning as judge, jury, and executioner.

This Act mandates the Secretary of Homeland Security to establish a Joint Behavioral Threat Assessment and Management Task Force: a 24 member bureaucracy consisting of one government employee (level GS-15 or above) and 23 people from non-governmental organizations of the Secretary’s choosing. Not a single member of this 24 person bureaucracy will be elected by the people, therefore the people will retain no control whatsoever over the actions or activity of this newly created bureaucracy that will possess, by Congressional consent, an enormous amount of arbitrary and unchecked power over the people (see §4(a)).

The sole purpose of this task force is “identifying individuals who are exhibiting patterns of concerning behavior” and create a power to control those people on a federal and local level (§3(2)). This Act contains no clear definition of “concerning behavior.” As a matter of fact, the Act relies upon the Task Force (24 non-elected bureaucrats) to first define “concerning behavior” and then empower the “monitors” tasked with “identifying individuals” that exhibit that behavior.

According to (§3(2)(a)) no actual criminal act must take place to invoke the power this bureaucracy creates. A Federal or State agent must only believe an individual is “interested” in committing their definition of “concerning behavior” to summon this new and undefined power to action.  The DHS will then be “empowered” to implement these arbitrary rules with no acknowledgement of any of the rights of the people. 

To take the legal-eeze off it, this is intended to create a registry of people who may commit crimes at some unspecified and unknown time in the future. This registry will then be used to begin a step-by-step usurpation of their individual rights, from the assumption of innocence and due process to the 1st and 2nd Amendments and more.

Once a State or federal gent has identified an American believed to be interested in some kind of concerning behavior, §3(2)(b) authorizes the bureaucracy to empower these agents to investigate and gather information from multiple sources (sources remain undefined in this Act) on this individual American to find “articulable facts” supporting whether this person is truly exhibiting an “interest” in committing “concerning behavior.”

The 4 th Amendment requires the government to obtain a warrant based upon probable cause (not articulable facts), supported by oath or affirmation, particularly describing the places to be searched and the persons or things to be seized. Under the 4 th Amendment, it is impossible for this Task Force to empower any government agent to do what Congress has authorized it to do. But the Act makes no mention of the 4 th Amendment or the government’s requirement to respect and secure the rights of the people.  According to §3(2)(c) of this Act, after the bureaucracy has compiled its “articulable facts” by circumventing the 4th Amendment’s requirements on government, the bureaucracy is now empower an government agent to “manage” the threat of “concerning behavior.” There is no definition within the Act for the word “manage.” However, the “Powers of the Task Force” are defined in §4(f) as follows:

“Any member of the Task Force may, if authorized by the Task Force, take any action which the Task Force is authorized to take by this section.”

While there are no guidelines created by Congress on how this bureaucracy is supposed to define “manage” or “identify” the behavior of Americans, §2 of the Act establishes that the Task Force will create its own “guidelines and best practices” in order to devise a “national standard” of action.  Therefore, it seems indisputable through §2 and §4(f) that any member of the Task Force can take any action it chooses as long the Task Force will establish the guidelines and practices for such action. The only limit of a government agent and the agency as a whole, rests solely upon the whim of the individual bureaucrat and the bureaucracy to limit itself.  There’s not a lot of history suggesting that would happen.


No Real Congressional Oversight

Congress retains no real authority to check, balance, limit, modify, or control the exercise of power created by this bureaucracy.  The only requirement for this new bureaucracy is to operate as the behavioral police in America and after one year the Secretary (the GS-15 government employee) will submit a report to Congress telling Congress what they have been doing for the past year. The Act then requires DHS to report to Congress once a year every subsequent year on how the guidelines are working, not as a check and balance.  

A deceived member of Congress may attempt to assert that the only authority of the bureaucracy is to make “suggestions to Congress” as to what the proper course of action should be. However, that assertion can be seen as pure error by reading §3(2)(c) of this Act.

A deceived member of Congress may believe that this federal bureaucracy will have no power over the State and local police powers. However §8 of this Act establishes that federal grant money will be given to local jurisdictions which will undeniably establish the power for this Bureaucracy to control local and State authorities once they accept that money. So just as with the Department of Education and so many other federal agencies, if the States submit to federal authority, they’ll get the money. Most to all States will. (Surely the American people recognize this sleight of hand by now!)

A deceived Supreme Court, upon legal challenge, will likely fail to recognize this Act to be vague and full of self-defining authority for a non-elected bureaucracy. SCOTUS has long held great deference to federal agencies and their agents to define their own authority and procedures when Congress leaves holes in the laws.

The Constitution delegates no authority to Congress to fund, recommend, or create a behavioral police for the people. The writing of this Act and the Act’s website proves that every co-sponsor of this Bill knows this as fact! First, the Act makes no mention of due process, the rights of the people, nor any reliance upon or limit established by the Constitution of the United States.

Secondly, if you go to the Bill’s website and click on the hyperlink “Constitutional Authority Statement” the link takes you back to a copy of the Bill text, with no statement of authority whatsoever. The Constitution is not what the foundation for this Act, but fear of guns on the left and fear of terrorists on the right.

So, with the passage of this Act, Congress will create a new bureaucracy who will be empowered to create its own guidelines and procedures on how it will operate; and to define, identify, and enforce government control upon its self-defined “concerning behavior” of individuals in America — complete autonomous, arbitrary, self-defined authority resting in the hands of bureaucrats elected by no one, and controlled by no one.

This Act, on its face, violates the 4th , 5th , 6th , and 8th Amendments. But as in every arbitrary law, the whole truth of its offense to the rights of the people cannot be fully known until the law is put into action. If this Act is used as some members of Congress profess, it is highly likely that execution of this Act will violate large swaths of the Constitution — including the 1st , 2nd , 4th , 5th , 6th , 7th , 8th , 9th , and 10th Amendments. Constitution and the rights of the people be damned, the bureaucrats will have their power under the illusion of keeping people safe — always the justification for taking away rights.

Members of Congress are championing this Bill as the “be all and end all” solution to gun violence in America, yet the Bill does not even once mention the words “gun” or “ammunition.” It should be clear now that the TAPS Act is not about gun control at all, it is about people control. It will target any American who voices, types, or indicates a thought toward questioning government policy, people, or power. (See the FBI Memo defining and identifying the “new” standard for domestic terrorist.)

How any politician who professes a knowledge of the Constitution or professes a love for America, her people, and their rights could ever back this insidious piece of legislation is completely beyond my comprehension. And as Patrick Henry said in 1788: “Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel.”

It’s time for the American people to hold these pretend patriots suspect and tell them to change their vote or change their vocation.

If any person, including members of Congress would like to discuss this with me, my door is open. My website: KrisAnneHall.com.

KrisAnne Hall is a former biochemist, Russian linguist for the US Army, and former prosecutor for the State of Florida. KrisAnne also practiced First Amendment Law for a prominent Florida non-profit Law firm. KrisAnne now travels the country teaching the foundational principles of Liberty and our Constitutional Republic. KrisAnne is the author of 6 books on the Constitution and Bill of Rights, she also has an internationally popular radio and television show and her books and classes have been featured on C-SPAN TV. KrisAnne can be found at www.KrisAnneHall.com.


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Constitution Truth

The Constitution Has Failed? No, It’s Merely The “Parchment Barrier.” Here’s What Has Failed.

By KrisAnne Hall, JD

There is an argument that seems to resurface repeatedly that the Constitution has failed and as a result, American politics are out of control. I have seen these arguments posited by journalists, professors, and Supreme Court justices. The standard argument declares two failed intentions for the Constitution:

1) To limit the power of government over the citizenry;

2) To limit the power of each branch of government.

However, the purpose of the Constitution as expressed by the drafters and ratifiers is not to “limit” the central government but to “define its limits.” And that distinction is critical. Much like a stop sign defines the place at which a vehicle must stop, yet no stop sign has ever stopped a vehicle.

James Madison, historically referred to as The Father of the Constitution, described these boundaries in Federalist #45:

“The powers delegated by the proposed Constitution to the federal government are few and defined…will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.”

Madison knowing that it is impossible for the Constitution itself to limit anything at all, posits this rhetorical question:

“Will it be sufficient to mark, with precision, the boundaries of these departments, in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power?”

Madison refers to this founding document as a “parchment barrier,” a mechanism of mere ink and paper. He knew that the Constitution had no power of its own and therefore could not limit the power of the government over the citizenry. The Constitution could not prevent the branches of government from expanding their own power beyond the grant of the document. It could not prevent one branch from taking power from other branches. If it could, then we could rightly blame the document for allowing what we see today.

John Adams, as he was addressing the Massachusetts Militia in 1798, knew like Madison that this was not so. Adams understood clearly where the blame would lie and that it would not be with an inanimate parchment which had the simple task of directing animate actors where to stop:  

“We have no Government armed with Power capable of contending with human Passions unbridled by morality and Religion. Avarice, Ambition Revenge or Galantry, would break the strongest Cords of our Constitution as a Whale goes through a Net. Our Constitution was made only for a moral and religious People. It is wholly inadequate to the government of any other.”

Adams was warning that unless the people are moral and constrained by a higher moral authority, the nature of the Constitution would not and indeed COULD NOT be an obstacle, nor any limit at all, if those in government wanted to ignore it for their own power, greed, or ambitions. Adams is alluding to the real and tangible limit to government, and it’s not the words on a piece of paper, it is the PEOPLE collectively who have chosen not to adhere to those words.

If we look out and see failure in the halls of government and across the political landscape, it is not the Constitution that failed us, it is we who have failed the Constitution. No rational person blames a clearly-printed, well-placed stop sign for a driver who fails to press the brake pedal.

In the “Anti-federalist” document titled Letter From a Federal Farmer to the Republican #6, we see that the drafters of the Constitution expected the “jealousy and vigilance” of the People to be the guardians and limits of government power, as the “strongest guard against the abuses of power.” Alexander Hamilton wrote in Federalist #33:

“If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people… must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution…”

It ought to be obvious by now it is not the Constitution that has failed, it is the People who have failed to maintain the limited and defined federal government the Constitution created. Why do corporate lobbyist control our federal representatives, senators, and presidents? Because the people have failed to control their representatives and the representatives, lacking knowledge and virtue, refuse to be controlled. The people have failed to enforce the limits of the Constitution and have failed to be their own lobbyists for Liberty and Individual Rights.

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Accusations can be found that say it is the Constitution’s fault that the “Federal Reserve has the power to debauch the nation’s currency and reward the wealthy via issuing new currency and buying Treasure bonds in whatever sums it deems necessary…” Indeed the Federal Reserve engages in such fraud, but the Constitution did not give such Federal Power to this private cartel. Not only does the Constitution give no such authority to the so-called Federal Reserve Bank; it gives no authority to the Legislative, Executive, or Judicial Branches to create a Federal Reserve or to abdicate their own power to a private banking cabal who is neither “federal,” a “reserve” nor a “bank.”

The Power to create money is delegated solely to the Legislative Branch through Article 1, Section 8, Clause 5:

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

The power to establish debt for the Union is also delegated exclusively to the Legislative Branch via Article 1, Section 8, Clause 2; To borrow Money on the credit of the United States. No one person can lay one credible claim against the Constitution for these actions. The entire corruption of the monetary system in American lays completely at the feet of the Legislative Branch, supported by the unconstitutional activism of the Supreme Court and the outside interests to which they bow.

Others fault the Constitution for the misconduct of the numerous alphabet agencies in the Executive Branch. The fact is that Constitution defines a very limited federal government, specifically enumerating its powers and reserving the internal everyday governmental authority to the individual States.

Madison, in Federalist #45, explains to those representatives who will eventually ratify the Constitution the specific limited nature of the federal government and the overriding nature of the powers reserved to the States:

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.

The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. 

 What that means for every American is that the overwhelming majority of executive agencies created by legislative acts of Congress are unconstitutionally created, exercising powers stolen by Congress from the states and unlawfully invested in an unauthorized executive agency. Americans feel these federal agencies are out of control because they are! They are not even permitted to exist at the federal level according to the creation and design of our Constitution and the evidence for this fact is incontrovertible and ubiquitous in the writings of the drafters of the Constitution. Here are just a few:

  1. …the National Legislature, shall extend to certain enumerated cases. This specification of particulars evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended. Hamilton Federalist # 83
  2. “I, sir, have always conceived — I believe those who proposed the Constitution conceived — it is still more fully known, and more material to observe, that those who ratified the Constitution conceived — that this is not an indefinite government, deriving its powers from the general terms prefixed to the specified powers —  but a limited government, tied down to the specified powers, which explain and define the general terms.” James Madison, 1792
  3. The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. James Madison, Federalist #45

The Constitution creates the federal government and then specifically enumerates every power it is permitted to exercise; nothing more, nothing less. Any power exercised that is not specifically enumerated is not exercised because the Constitution allows it, but is exercised in spite of the Constitutions specific intentions to the contrary. The Constitution can not stop people, agencies, regulations, or laws contrary to its intent, any more than a stop sign can halt a speeding motorist. Like the traffic notice planted by the roadside, It has no sword, no will, and no power of its own. The Constitution was built to be a written reminder to the people of the limited nature of government and the standard by which the PEOPLE must hold their representatives.

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Even the corruption of the Judiciary is blamed on the Constitution. But again, the Constitution can carry no blame. The modern “ruling” nature of the judiciary is outside the intent and authority of the Constitution. The fact that modern society refers to judicial opinions as “the law of the land” or gives them the “force of law” is not a creation of the Constitution, but an aberration of the Constitution’s very limited delegation of judicial authority. Hamilton wrote in Federalist #78 that the judiciary was designed to be the weakest of the three branches of government:

“The judiciary on the contrary has no influence over either the sword or the purse, no direction either of the strength or of the wealth of the society, and can take no active resolution whatever… It proves incontestibly that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two…”

Thomas Jefferson, writing to Spencer Roane in 1819, explained that to claim the judiciary as the ultimate authority to “interpret” or “define” the terms of the Constitution, would transform the Constitution into “a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please.”

If the Constitutional structure has been completely reversed, how is that the fault of the Constitution?

It is not Constitution’s responsibility to limit the government, nor can we expect the government to limit itself. The responsibility to limit and control the federal government has always rested, from conception to ratification of the Constitution and beyond, upon the “jealousy and vigilance” of the people.

Elections are not corrupted because the Constitution failed. Politicians are not immoral and dishonest because the Constitution failed. We do not have trillions of dollars in debt because the Constitution failed. We are not in a perpetual state of war because the Constitution failed. Our rights and liberties are not being trampled upon by agencies and agents because the Constitution failed.

The argument that the unconstitutional acts of people in government are the fault of the Constitution is the same errant logic that drives people to say that guns are the cause of crime, deaths, murder, and suicide. When we blame the Constitution, the real culprits — we, the people and our politicians — can escape accountability.

The Constitution cannot fail. The Constitution cannot succeed. The Constitution is an inanimate object, mere ink and paper. When the government fails to follow the Law of the Land and exceeds its limited and defined boundaries as established within the Constitution, it is not the document’s fault, it is the fault of the people who do not require their government to be limited and defined by the document that created it. Samuel Adams summed it up quite precisely when he wrote;

“No people will tamely surrender their Liberties, nor can any be easily subdued, when knowledge is diffused and virtue is preserved. On the Contrary, when People are universally ignorant, and debauched in their Manners, they will sink under their own weight without the Aid of foreign Invaders.”

If we want to restore proper government, we do not need to change or get rid of the Constitution. We must end the ignorance of the people regarding the limited nature of their government and their personal responsibility to confine that government within its designed limited capacity.

We don’t have a stop sign problem, we have a problem hitting the brakes.

KrisAnne Hall is a former biochemist, Russian linguist for the US Army, and former prosecutor for the State of Florida. KrisAnne also practiced First Amendment Law for a prominent Florida non-profit Law firm. KrisAnne now travels the country teaching the foundational principles of Liberty and our Constitutional Republic. KrisAnne is the author of 6 books on the Constitution and Bill of Rights, she also has an internationally popular radio and television show and her books and classes have been featured on C-SPAN TV. KrisAnne can be found at www.KrisAnneHall.com.


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Categories
Constitution Guns Rights Second Amendment Truth

Presidents Day Open Letter: Historical Case For Not Enforcing Laws That Deny the Right to Keep and Bear Arms

Open letter to Governors, Attorneys General, the Legislators of these United States and the People along with their Sheriffs and Peace Officers
From KrisAnne Hall, JD

Both Washington State Governor Jay Inslee and Washington Attorney General Bob Ferguson have issued letters regarding the State of Washington’s Initiative 1639 and Washington law enforcement officials’ refusal to enforce the measure in part or in total. Similar laws are being passed by legislators and signed into law by the governors of other States, sadly with little protest.

Proponents of Washington’s Initiative 1639 and those critical of the law enforcement officials cite a “duty to the Constitution” and to the “rule of law.” Yet in many respects these laws are built on the circumvention and abdication of the rule of law. The Constitution and its underlying principles define the rule of law. As such, “the rule of law” cannot be synonymous with “the will of the” majority, as Washington’s AG suggests, when the majority’s will advocates the suspension of due process and the revocation of a person’s natural rights (which all officials involved in this debate swore an oath to uphold.)

The Declaration of Independence lays before us the premise and purpose of all governments, past, present, and future. It states:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…(emphasis mine)

 

Sole Purpose of Government: Secure the Rights of All People Equally and Individually

It is evident that the entire purpose of any form of government is to secure the rights of the individual citizens. The Rights our foundational documents refer to are those classified as “inherent rights:” and they consist of life, liberty, property, and the right to personally secure them in the best manner possible.  The most basic of natural rights is the right to self-preservation, to which the natural right to secure property is connected.

No person is secure in their life, if they cannot also personally secure that life and the property upon which life is dependent. If a person is in danger of loss of life, liberty, or property and has not the personal right, along with the individual ability, to secure these essential rights, then each person is dependent upon someone else’s desire to protect them, reducing every person to that of an indentured or tributary slave, indebted in life to those who are tasked with its security.

 

Origin of Legislative Power: Individual Rights Precede Legislative Power, Therefore Legislative Power Exists Solely To Ensure Individual Rights

The legislator with his delegated responsibility, cannot be exalted above the inherent rights of the individual which he is charged to protect. Life, liberty, and property do not exist because people have legislators who have made laws. On the contrary, it was the fact that life, liberty, and property existed beforehand that caused people to entrust legislators with the power to make laws in the first place. So the justification “it was passed by the legislature,” does not and should not override an inherent individual right, even more so when the legislature is admonished by the Supreme Law to not infringe upon said right.

The Definition of “Just Power”: Just Power of Government Secures The Individual’s Rights Above All Other Objectives

Therefore it is a just government, which impartially secures to every man, whatever is his individually and personally. It is because of this duty to protect the individual’s natural rights that every government in these United States incorporates the requirement of due process for the suspension of these Rights. It is not a just government, nor is an individual’s right secure under it, where the property which a man has in his personal safety and personal liberty, is violated by arbitrary seizures of one class of citizens for the comfort or peace of mind of the rest (even if the rest constitutes 60% of the population).

 

The Definition of “Unjust Power”: Unjust Power is Power Exercised by Government to the Destruction Of the Individual’s Rights

The mere existence of a majority desire does not override the natural rights of the minority. To create and enforce laws merely because the majority (60% of the people) desire the law to be so, absent any regard to personal and individual rights, is nothing more than a tyranny of the majority.

It is through this errant political motivation that history’s greatest injustices have taken place, even here in America. It was once the majority opinion that a minority of people could, by law, be placed in a state of permanent and inherent servitude. It was once the majority opinion that a minority of people could be legally classified as mere property or chattel. It was once the majority opinion that legally enforced physical segregation of the majority from a minority was appropriate. It was once the majority opinion that a minority of Japanese Americans and Hopi Indians could lawfully be imprisoned indefinitely in internment camps without due process.

Americans ought to be learning from these mistakes, not fighting to repeat them. The majority of Americans would agree that a single dictator with the power to oppress all is a wicked and unjust government. Please then explain, how the tyranny of the majority is any different than the despotism of one in the lives of those whose rights are violated?

 

The “Will of the Majority” is Contrary to the Rule of Law Majority Rule is synonymous with Tyranny of the Majority Not With Security of Rights

The “Rule of Law” is a term that has been understood throughout history to mean a standard to limit the overreach of government and curb lawlessness. It is does not mean the authority of the government to rule over the people. The independent states of America and their central government were created with written Constitutions to maintain a written limited standard for government to prevent the will of the majority and those who govern to usurp the rights of the individual.

The so-called “will of the majority” cannot be synonymous with the rule of law. If that be the case, then those who are disposed to usurp the rights of the people, need only to control the will of the majority; either through manipulations, coercions, fear, or brute force. It is because of this truth of the tyranny of the majority that every government in these United States is required to exist as a republic, not a pure democracy; that every law to be created through equal representation, and is to be governed by and limited to the ultimate purpose of all government — the security of the Rights of the individual through written Constitutions. When any form of government operates contrary to these foundations, that government has exceeded its proper function, acting in direct opposition to its own purpose.

The law has been used to destroy its own objective. It has been applied to annihilating the justice that it was supposed to maintain, to limiting and destroying rights which its real purpose was to respect. It has converted lawful defense of life, liberty, and property into a crime, in order to punish lawful defense of these essential and natural rights.

 

When the Laws of Government Operate Contrary to Individual Rights:
  1. Government Is Operating Contrary to Its Sole Purpose
  2. Government Is Not Operating with Just Power
  3. The People Are Not Free

It becomes the duty of all who love and respect the Rights of their children to protect the citizen from the unjust operation of government.

When those entrusted in government to secure the rights of the individuals turn that trust into a tool to deny those rights, it is incumbent upon those who understand the obvious limits of government and the necessity of those limits to stand in opposition to that unjust use of authority; just as those in America’s past, who refused to enforce the Federal Fugitive Slave Act because of its obvious abuse of power and destruction of rights wielded by those legislators who ratified it into law.

Those who have taken an oath to secure the rights of the people, who understand the magnitude of that solemn promise and the unavoidable and tragic consequences of failing to uphold that promise, feel morally compelled to take a stand. How noble an example would American history have if there was just one Sheriff in Montgomery, Alabama who recognized that a law, ratified by legislators, signed by a governor, reflecting the will of the majority, was not a just law after all. What if instead of arresting Mrs. Rosa Parks, that Sheriff refused to enforce a law that deprived an individual of her rights and instead protected those rights, escorting Mrs. Parks, in which ever seat she chose, all the way home? Those, who are dedicated to their just and lawful duty to secure the rights of the people, understand that at these times the “will of the majority” and the distortion of the rule of law’s definition must be resisted.

The right to individually secure our life, liberty, and property is no different than our rights to freedom of speech, freedom to peaceably assemble, or freedom to worship and live out our faith. A law that establishes that a person is prohibited from possessing any degree of property, but especially property essential to the personal security of individual rights, without due process, ought to be seen as arbitrary.  A capricious legislature moved by the tragedy du jour should not be the model for sound and stable government that protects liberty.

If the governments of these United States mean to obtain or deserve the full praise due to wise and just governments, they will equally respect the rights of property, and every inherent right of the individual.  If they truly wish for a free and strong nation, they will endeavor to sacredly guard all forms of individual property and resist all desires to violate the individual’s right, regardless of the opinion of the majority or the fleeting emotion of the day.

They will not seek to “target the bad guys” by stripping law abiding citizens of their inherent rights and turning otherwise lawful behavior into crimes. Our inherent rights are not killing innocents, so why are our rights targeted? Oppression doesn’t bring safety. Our governments should seek to be a pattern liberty and example of just government so that our posterity may be truly free.


An honorable oath:

I do solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution and laws of the State of (name of State), and that I will faithfully discharge the duties of the office of (name of office) to the best of my ability.

 

Sincerely and In Liberty,

KrisAnne Hall, JD

KrisAnne Hall is a former biochemist, Russian linguist for the US Army, and former prosecutor for the State of Florida. KrisAnne also practiced First Amendment Law for a prominent Florida non-profit Law firm. KrisAnne now travels the country teaching the foundational principles of Liberty and our Constitutional Republic. KrisAnne is the author of 6 books on the Constitution and Bill of Rights, she also has an internationally popular radio and television show and her books and classes have been featured on C-SPAN TV. KrisAnne can be found at www.KrisAnneHall.com.


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Constitution Guns Second Amendment Truth

Venezuela: A Study In The Need For Citizen Gun Rights

by Julio Gonzalez, M.D., J.D.

With all deference to hunters and sportsmen, it wasn’t their right to hunt that inspired James Madison and our nation’s First Congress to include the Second Amendment in their proposed Bill of Rights. There’s was a much greater concern: checking the power of a potentially tyrannical state. The modern left dismisses this argument as nonsensical, superfluous, and yes, even hysterical. They’re wrong.

The right for every American citizen to be armed was designed as a bulwark against tyranny.

But despite its foolish attempts at diminishing the importance of gun ownership as a check on government, the fact remains that the concern was central in the minds of the Framers. Perhaps Noah Webster, that great American scholar and teacher whom we have all come to know by way of his dictionary, put it best when he wrote, “The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops.”

That was the point.

Indeed, history has seen the pattern of gun right suppression in coordination with the rise of tyranny and oppression play out time and again. China, Nazi Germany, communist Cuba, Russia and North Korea are but a few examples. In fact, in keeping with Webster’s observation, the propagation of a dictatorship would be difficult to conceive if imposed upon a well-armed population. And now, as we witness the financial and societal collapse of our distant southern neighbor, it is evident that Venezuela is no exception.

In 2012, Venezuela’s communist National Assembly banned gun ownership. The stated reason for such an intervention is the oft-quoted safety argument. In 2011, 40% of Caracas’s homicides were robbery related with armed robberies accounting for 70% of all major crimes.

Predictably, the government’s call for voluntary disarmament produced virtually no results on safety, leading to the forcible confiscation of 12,603 firearms in 2013 alone.

The result? A rise in violence against police officers, and most ominously, a rise in violence by the state against its own citizens.

In 2015 alone, 252 law enforcement officers were killed in Venezuela. Why? Well, in Venezuela, police officers are targeted for their firearms!

Additionally, when Venezuelans took to the streets to protest the “unjust laws” of which Webster wrote centuries ago, the state used live ammunition to quiet them down. And like Cuba, Maduro’s regime established a group of colectivos, groups of local individuals charged with the implementation and enforcement of Maduro’s policies, except that, in Venezuela, 400,000 of them were officially armed by the state and allowed to “carry out the regime’s rule by violence.”

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And what about the national homicide rate? The rate that the government was trying to reduce? It actually rose from 73 per 100,000 in 2012 right before the ban was implemented to 90 per 100,000 in 2015. In fact, in 2015 Venezuela faced the world’s highest homicide rate with 27,875 murders.

There are elements within our country obsessed with restricting our gun rights. Yes, there are portions of our country in urban areas where gun violence reigns supreme. And yes, the recurrent stories of senseless killings and associated suffering is tragic beyond words. But there is no greater tragedy than a people who once given freedom are robbed of their liberties in pursuit of false assurances of safety and protection.

They will have neither liberty nor safety.

Truly, Madison was not thinking of our right to hunt when he penned our Second Amendment. He was thinking of much more ominous possibilities, the same eventualities that inspired Thomas Jefferson to proclaim, “it is [our] right and [our] duty to be at all times armed.”

Dr. Julio Gonzalez is an orthopaedic surgeon and lawyer living in Venice, Florida. He is the author of The Federalist Pages and cohost of Right Talk America With Julio and Rod. Dr. Gonzalez is presently serving in the Florida House of Representatives. He can be reached through www.thefederalistpages.com to arrange a lecture or book signing.


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Constitution Truth

KrisAnne Hall: The Constitutionality of A Presidential State of Emergency

By KrisAnne Hall, JD

My inbox is being inundated with the question de jour: “If President Trump declares a ‘State of Emergency’ to build the wall on the border of Mexico, is that Constitutional?”

I am certain that is not the right question, or perhaps not the right way to ask it, but to ask it and answer it correctly, let’s briefly remind ourselves of America’s Constitutional structure and function.

The Constitution of the United States defines the powers for the three branches of federal government. Each of these branches are delegated specific enumerated powers that are not only limited and defined by the Constitution but also separate and distinct in their delegations. The branches of government do not share powers unless that specific cooperation is ascribed by the Constitution. For example, the power to create treaties (today referred to with the obfuscatory label — “deals”) is not an autonomous power belonging to the president but one that requires specific concurrence by the Senate.

Recall that the 10th Amendment declares that any power not delegated through the Constitution remains in the hands of the States. This is the opposite of Teddy Roosevelt’s “stewardship” doctrine that says the feds can do whatever they want as long as the Constitution doesn’t say they can’t. Federal Supremacists love this perspective. That was NOT the discussion or conclusion of the ratification debates. There are no unnamed powers floating in the ether waiting to be snatched up by the central government. Roosevelt’s Secretary of War William Taft rightly conveyed the framers’ positions, “a specific grant must be either in the Federal Constitution or in an act of Congress passed in pursuance thereof. There is no undefined residuum of power which (the federal government) can exercise because it seems…to be in the public interest…”

The specific delegations of power, as well as NON-delegations, were created thoughtfully, deliberately, with knowledge of history and human nature. The limitations of those powers involved considerable debate and study into past history and ancient governments.

Patrick Henry said in his famous “Give Me Liberty or Give Me Death” speech: “I have but one lamp by which my feet are guided; and that is the lamp of experience. I know of no way of judging of the future but by the past.” Alexander Hamilton wrote in Federalist #20: “Experience is the oracle of truth…”

However, it is not uncommon in the evolution of the American Republic to see the government AND the citizenry cast off the wisdom and experience enshrined in the founding documents to address some “urgent necessity.” Instead of taking the intentionally cumbersome path to do it right, Americans willingly run roughshod over Constitutional barriers because — “we have to get this done ,” or “there is no other way to do it!” These instances have slowly transmuted the Republic into the nearly limitless federal behemoth we know today.  We would be well-served to paste a banner over our televisions and computers reminding us of what William Pitt said in 1783:

“Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.”

So when people ask questions like “Can the president do…?” “Can the House, Senate, or Supreme Court do…?” the first sources that must be consulted are the Constitution and the people who drafted it.  If the Constitution provides no authority for the activity, then the power does not Constitutionally reside in the hands the federal government. So more to the root of the question being asked, “Does the Constitution enumerate a power to the President to declare a state of emergency?” The short answer is No.

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Every state of emergency refers to the National Emergencies Acts as the source of its authority. So the real question is “Does the Constitution authorize Congress to alter (expand or contract) executive power by legislative act?”  The constitutional answer to this question is obviously No.  Congress cannot add powers that the Constitution has not delegated to the president nor can they take away powers that have been delegated.  For Congress to have the authority to add power to the executive branch, they would have to possess the authority to actually amend the Constitution by congressional act, which they do not.  Additionally, for Congress to delegate a power to the executive branch that has been constitutionally delegated to Congress, is a per se violation of the Constitution by crushing the principle of Separation of Powers.  James Madison, quoting political philosopher Montesquieu, was very direct with his words regarding separation of powers:

“There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates…” Federalist #47

Spending, war, appropriations, national defense, and naturalization are all powers specifically delegated to Congress.  For Congress to abdicate its power to the executive branch is not only not authorized by the Constitution, it is necessarily forbidden by the principle of Separation of Powers to ensure the security of the Liberty of the people.

Shockingly, this debate over states of emergency has raged for decades and nobody seems to offer the obvious correct answer — if we want the President to have such powers we must amend the Constitution.

Yet if you consider how far we have strayed and how long we have been off the path, President Trump is doing nothing out of the ordinary, he is following a long history of extra-Constitutional (aka unconstitutional) action.  We have just accepted a broken government as the norm since at least 1861 when it comes to “national emergencies.”

If you tell a lie long enough, people believe it to be truth and the lie of expanded executive power has a long history.  I think this principle is even more powerful when that lie comes from someone you like, or applies to a situation you happen to agree with.  But that lie can only operate as truth with very dire consequences, the most obvious consequence would be that the lie operates as truth not only for the people you like but also the people you don’t like.

Some claim expansion of executive power began with the George Washington administration’s response to the whiskey rebellion. Yet in this instance, Congress authorized Washington to quell an “insurrection” which falls within the constitutional authority of both Congress and President. It was Congress that then began creating “stand-by laws” to give the President powers beyond the grant of the Constitution in time of “national emergency.” They should have proposed a Constitutional amendment, not passed a law. (Interestingly, Washington later pardoned everyone who was arrested during the rebellion, if they were not already acquitted.)

The first unilateral act of a president arose when Lincoln blockaded American ports and expanded military forces without Congress.  The Congress and the courts eventually went along and this became the confirmation and justification of the President’s emergency power.  Woodrow Wilson and FDR faced similar emergency power controversies and were not thwarted by Congress.  In 1917, President Woodrow Wilson started the “Presidential Proclamation” that triggered the availability of all so-called stand-by laws for these declarations of emergency.  The process came to a head when, after Truman proclaimed an emergency in response to Korean hostilities, the same order was used to wage war in Vietnam 22 years later. 

Congress, led by Senator Church, launched an investigation. One of numerous Congressional studies in 1973 showed that the Congress had already passed over 470 statutes granting the President “EXTRAORDINARY POWERS” during time of emergency.  In an attempt to restrain and proceduralize the use of emergency powers, perhaps restrain the monster they allowed to grow, Congress passed the National Emergencies Act on in September of 1976.

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In light of the fact that Congress is not authorized through Congressional act to expand delegated authority, consider these two points from two constitutional delegates:

“There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void.  No legislative act, therefore, contrary to the Constitution, can be valid.” Federalist #78 — Alexander Hamilton

“…the power of the Constitution predominates.  Any thing (sic), therefore, that shall be enacted by Congress contrary thereto, will not have the force of law.” James Wilson, Pennsylvania Ratifying Convention 1787

The Constitution, as well, is not silent on this issue.  Article 6 clause 2 codifies the principles laid down by the above drafters of the Constitution when it says:

“This Constitution, and the Laws of the United States which shall be made in pursuance thereof; …shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

Every law must be made, every federal action must be taken, “in pursuance” to the Constitution.  If that act is not specifically authorized by the Constitution, then the “Judges in every State” are NOT bound thereby.  What that means is the “National Emergencies Act,” “War Powers Act,” 8 US 1182- empowering the president to determine the admissibility of aliens, and many, many others are all unconstitutional delegations of power by Congress to the president.  Which makes them, by the terms of the Constitution AND the drafters of that document, null and void.

So the question is NOT: “If the President declares a national emergency and builds the wall, is that Constitutional?” That’s an easy question to answer, No. The question is “Will we keep pretending to live in a Constitutional Republic, while making it up as we go along?”  Other than electing a Congress that actually cares for the security, safety and integrity of the nation, there are two simple options: Amend the Constitution and have the states give the president this authority or stop pretending, get rid of the Constitution and go back to a monarchy.

KrisAnne Hall is a former biochemist, Russian linguist for the US Army, and former prosecutor for the State of Florida. KrisAnne also practiced First Amendment Law for a prominent Florida non-profit Law firm. KrisAnne now travels the country teaching the foundational principles of Liberty and our Constitutional Republic. KrisAnne is the author of 6 books on the Constitution and Bill of Rights, she also has an internationally popular radio and television show and her books and classes have been featured on C-SPAN TV. KrisAnne can be found at www.KrisAnneHall.com.


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Constitution Free Speech Liberty Truth

2019-2020: The Coming Battle To Save Free Speech

Rod Thomson

For conservatives, the idea that free speech — that most integral of constitutional protections ensconced in the First Amendment — is now under full-scale assault culturally, corporately and governmentally is not exactly news.

We’ve been feeling the hammer for some time now.

But 2018 saw the ugly head of creeping authoritarian impulses poke above the surface and smile the wicked smile of the tyrant seeing his moment.

In the end, this is not a conservative, liberal, libertarian, Republican, Democrat issue — it is a Leftist versus everyone else impulse. Yes, continually redefining the Overton window — the boundaries of societally acceptable speech — inward is being done on the left and largely excluding liberals at the moment. So liberals don’t see the leftists coming for them. Many don’t even realize the difference. But they will. (See the attacks by the transgender activists against feminists as an early volley.)

Authoritarian throttling of free speech is an animal that will eat us all in the end. But alas, it is up to conservatives and our voices — and hopefully elected representatives — to be the frontline defense against this assault. If we wait for others to come onboard, it will be too late. Our voices will be gone.

Andrew Doyle wrote in Spiked magazine:

“Who would have thought that in 2018 it would be deemed controversial to uphold the principle of free speech? Whatever else the events of this year have taught us, it is now clear that the fundamental human right to express oneself as one sees fit is under threat. With both major political parties supporting further hate-speech legislation and varying degrees of press regulation, and with Silicon Valley tech giants routinely censoring their users, the time is ripe seriously to consider how we might retaliate against the creeping authoritarianism of our age.”

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This is the very reason that The Revolutionary Act was launched two years ago. Our name comes from George Orwell’s dystopian 1984 novel in which he writes that in a time of universal deceit, telling the truth is the revolutionary act. In 1984, telling the truth through the exercise of any form of speech was punishable by the offender disappearing (death) and ultimately their very existence being erased from history through the memory hole.

We don’t live in Orwell’s 1984. But we are undeniably moving in that direction, and 2018 made it clear.

Of course, there remains the blackballing of wrong-think Hollywood actors and producers, right-think speech codes on college campuses and Antifa thugs in the streets of the most liberal cities and college campuses intimidating and attacking conservatives. But that is old school, inefficient free speech quashing.

The real fight now over free speech is in the digital realms that have come to dominate our lives, and where censorship is oh so real.

In the strictest sense, censorship can only be a legal violation when committed by the state. In the age of social media giants as the primary conduits of information, however, it is as tangible as any kingly edict of old.

Facebook, Youtube, Twitter, Instagram, Google dominate the flow of information in a way inconceivable a decade ago. We now know that all of them purposely tip the scales in favor of the left, against conservatives — including shadow banning, suspending accounts, outright banning, fudging search results and more. Internet Service Providers (ISPs) have even taken down and erased web sites with which they disagree. So far, those have been pretty extreme sites, thought to be on the extreme right but actually not on the right at all.

We have just learned that the leadership of the tech giants meet periodically to discuss what Twitter calls “healthy conversation” and that Facebook has created 1,400 pages of rules for their moderators to use to curate more right-think.

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Most conservatives, myself included, recoil at the idea of the government meddling in the decisions of private companies — particularly those involved in disseminating public information. But the ubiquitousness of just a half dozen companies in commanding most of the world’s information flow — companies that are run uniformly by leftists who meet periodically to coordinate how they will stop wrongthink (for which they use more soothing terms) should cause every freedom-loving American to be just short of terrified.

There are a couple of options, in addition to doing exactly what I am doing.

One, the Silicon Valley rulers could be determined to be quasi-monopolies, giving the federal government the authority to regulate them as it does utility companies. That strikes me as a pretty bad option as the government sometimes micromanages utility companies while also guaranteeing their profits. Really bad for information platforms.

Second is the idea of an Internet Bill of Rights. This sounds great on the surface, but once you read some of those proposed — largely by Democrats — you realize it has nothing to do with free speech. It folds together a lock-in for net neutrality, increased privacy rights for individuals, consumer choice for ISPs and more. So this just becomes a D.C. grab bag without actually addressing the elephant stinking up the living room.

Democrats think the elephant will only stink up Republicans’ living rooms, so they ignore it. So the Internet Bill of Rights is not a great idea unless it is grounded Constitutionally in the First Amendment. Does that seem likely coming out of Congress right now?

Third, the Silicon Valley giants’ legal standing as platforms could and should be challenged in court. In censoring based on content, they are acting more and more as publishers, meaning they should held to a much higher standard at many levels, not least of which is copyright laws. If they lost such a court challenge, they would instantly have to relinquish their censorial ways and revert to their earlier forms of being open platforms only to survive. This seems like the best option.

Of course, there are the alternatives social media sites, but they are so tiny as to be irrelevant. Even if that changed, it would just result in a further bifurcation information, placing Americans at even more distant extremes from each other.

Whatever happens going forward, and my fear is nothing but more egregious censoring by tech giants, 2019 and most certainly the election year of 2020 will be dangerous times for fundamental rights.

Rod Thomson is an author, TV talking head and former journalist, and is Founder of The Revolutionary Act. Rod is co-host of Right Talk America With Julio and Rod on the Salem Radio Network.


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Constitution Guns Second Amendment Trump Truth

Bump Stock Ban Broken Down: Unconstitutional And Futile

by Julio Gonzalez, M.D., J.D.

Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.  
Benjamin Franklin

On December 10, 2018, the Department of Justice published its final rule regarding a bump stock ban in the United States. (The rule can be found at the The Federalist Pages Library section, along with the NRA’s comments on the proposed rule.) The DOJ arrived at this prohibition by holding that bump stocks are machine guns under the definitions of such weapons contained in 27 C.F.R. §§ 447.11, 478.11, and 479.11. But even if DOJ were to have the authority to enact this regulation, the rule would serve only to further threaten American citizens with excessive regulatory restraints while not having a chance at achieving its stated purpose.

A constitutional government of enumerated powers ought not pass any law that falls outside the ambit of those authorities given to it, nor those that do not serve to improve society. As such, even if we decide that a government is authorized to pass a law, that authorization is nullified by the futility of the act. Such is the case here.

First, Congress is arguably entitled to pass a bump stock ban under the Second Amendment.

A valid argument can be made that Congress possesses the authority under the Constitution to pass a bump stock ban. Although some argue the Second Amendment to the Constitution prohibits Congress from banning bump stocks, in point of fact, a stronger argument holds that such a prohibition does not apply to firearm accessories, which bump stocks clearly are.

In banning bump stocks, the DOJ claims it is merely interpreting the definitions of “machine gun” contained in 27 C.F.R. §§ 447.11, 478.11, and 479.11. Because it does not include a provision addressing parts of a machine gun, 27 C.F.R. § 447.11 could not be construed to include a bump stock, but 27 C.F.R. §§ 478.11 & 479.11 do. They define a machine gun as “any weapon, which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machine gun, and any combination of parts from which a machine gun can be assembled if such parts are in the possession or under control of a person.”

Clearly, bump stocks may not be included within the first part of the definitions of “machine gun,” but bump stocks are designed solely and exclusively for use in converting a weapon into a machine gun.

Of course, there is an inconsistency in using the term machine gun within the definition of machine gun, as doing so implies that what is being described is not a machine gun, but something else — which is then modified to act as a machine gun. As we shall see, the flawed design of the machine gun definition brings up some legal difficulties.

Because it could reasonably be argued that Congress intended to include bump stocks within its definition of machine gun, which would mean the Bureau of Alcohol, Tobacco, Firearms, and Explosives would have the authority to regulate them, and DOJ would have the congressional authority to ban them.

But oddly, by calling a bump stock a machine gun, DOJ opens the door to Second Amendment jurisdiction. Governments have argued their authorities to regulate magazines, bullets, and other firearm attachments are not subject to Second Amendment restrictions because these are not “arms” as referenced in the Second Amendment, but rather accessories to arms.

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However, in order to avail itself of the congressional authority to regulate bump stocks, DOJ has found it necessary to call bump stocks machine guns, which are firearms, thus opening the door to Second Amendment challenges.

Even if the judiciary takes up the charge of considering bump stocks machine guns in the full sense of the word, the question of whether it would find that regulating bump stocks runs afoul of the Second Amendment is a separate matter.

Interestingly, it was not until the District of Columbia v. Heller case of 2008 that the Supreme Court defined those weapons protected by the Second Amendment. Here, the Court ruled that it was weapons “in common use,” that were protected. Although little question exists that bump stocks are “in common use,” the Court also reminded us that Congress could ban “dangerous and unusual weapons.”

Notice, the phrase is not dangerous or unusual, but dangerous and unusual, forcing the government to show that bump stocks are both if it were to defend its authority to prohibit them. What the courts would rule if it would accept the invitation to consider bump stocks as actual firearms rather than accessories remains to be seen.

Countering this position is the lack of meaningful uses for bump stocks, which are used to increase the speed with which a weapon is fired, but most gun experts say that bump stocks are worthless items that only serve to diminish the accuracy of the weapon, and they are not advocated for use in hunting, or even as a valid enhancement to one’s self-defense. As such, it would be a very easy bar for the advocate to clear in arguing the superfluousness of such items and therefore, the lack of any meaningful intrusion on individual liberties in banning them.

One could also argue that a bump stock is not a machine gun. This is inherently true, of course, as a bump stock could not, by itself, fire a bullet. If a bump stock is not a machine gun, then DOJ’s reliance on 27 C.F.R. §§ 478.11 & 479.11 would get thrown out as nonsensical. Frankly speaking, such would be the honest assessment and the most appropriate outcome of a true evaluation of the language of the governing statutes.

However, it is equally clear that Congress, despite the grammatical impossibility of its definition, intended to include articles such as bump stocks in its regulatory scheme. A court would likely stick to the intent of the statute rather than engage in wordplay on such a politically charged issue. Of course, should the court decide not to make an issue of the incongruity of the definition of machine gun, it would immediately force itself to address the Second Amendment issues noted above; an inescapable Hobson’s choice

Is Congress’s ban prohibited by the broader Constitution?

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There is yet another, more fundamental argument to be made against the validity of a congressional ban: it might not be allowed by the Constitution itself.  Until now, our constitutional considerations have centered on whether Congress may ban bump stocks under the Second Amendment.  Indeed, the greater question is whether Congress was ever given the authority to do so under the broader Constitution.

The federal government is one of enumerated powers. If a power employed by Congress in passing a law is not contained in Article I, Section 8 of the Constitution; it cannot possess the authority to enact it, and there is no provision in the Constitution allowing Congress to ban bump stocks. Even the interstate commerce clause would not allow Congress to ban it.

That Congress was not given the authority in Article I to ban items is a well-founded contention as the Framers did not intend to create a federal government that could ban such things, leaving it to the states to do so instead. To be sure, the Article I powers contained in the Constitution have been expanded by the interstate commerce clause, but even if the interstate commerce clause were to be employed in Congress’s defense of regulating bump stocks, such powers would allow Congress to prohibit the interstate transport and sale of such items, not their intrastate possession.

Sadly, though, the train allowing Congress to intrude in such intrastate activities has long since left the station and delivering such an argument before a federal magistrate would be met with nothing other than hostility.

In the most practical sense, regulating bump stocks would likely not help.

Despite these valid arguments, many of which are addressed in DOJ’s final rule announcement, the most basic argument against banning bump stock lies in its futility. Recall that according to the legal theory leading to the creation of our government, the burden is upon the authorities to show that the rule or law passed is within the ambit of its authorities and purposeful in addressing a societal problem.

Assuming appropriate authority — which we questioned above — would banning bump stocks help solve a societal problem?

The discussion about banning bump stocks was brought back to the forefront of the nation’s political discussion after the horrible massacre of 2017 in Las Vegas. There, bump stocks were used to convert semiautomatic weapons to automatics and spray over 1,100 rounds from the 43d floor of a hotel onto concert goers assembled across the street. Fifty-eight people were killed that night and another 851 were injured, 422 from gunshot wounds.

Immediately, gun control advocates, knowing that they would not easily be able to ban semiautomatic weapons, focused their attention on bump stocks. Although bump stocks were not employed in the February 14, 2018, Parkland shooting, that massacre reinvigorated the call for a ban, one that President Trump adopted. By March 2018, DOJ had published its proposed rule.

But such a ban will not have any effect on preventing or lessening these massacres.

First, massacres can and often do take place without the use of semiautomatic weapon converters. Not only did the Parkland shooter not employ bump stocks, but also the later massacre in a California nightclub where 13 were killed was carried out with great effectiveness with a handheld semiautomatic. Similarly, the Pulse Club shooting in Orlando that killed 49 people did not include bump stocks.

Federal authorities do not know how many bump stocks exist in the United States although DOJ estimates that there are anywhere between 280,000 and 520,000 in circulation. There is no record of who owns these accessories, making it impossible for DOJ to chase them down. Additionally, the rule relies primarily on the voluntary destruction of bump stocks to remove them from circulation. Here, we can learn from the experiences of the few states that have passed bump stock bans. In New Jersey, its bump stock return program has produced exactly zero bump stocks to authorities. And in Massachusetts, its program has delivered three.

Moreover, a semiautomatic rifle can be converted to fire automatically by using as many methods as imaginative minds can conjure, making conversion a relatively simple affair, bump stock or not.

Even Jeremy Stein, the President of Connecticut Against Gun Violence and coauthor of the Connecticut bump stock bill called the legislation ineffective at solving gun violence problems and said the effort at banning bump stocks was “symbolic.” In addition, The Wall Street Journal said enforcement would be “a challenge.”

So the strongest argument in favor of passing anti-bump stock legislation is the invalid symbolism contention and the argument against it is the indisputable futility charge, and possible unconstitutionality.

But the rule gets enacted anyway, which brings us to the heart of the issue. Government should not be engaged in the practice of knowingly passing ineffective legislation, and we the people should not be allowing it to do so.

Yet, they do; and we do. And therein lies the crux of our problem.

Dr. Julio Gonzalez is an orthopaedic surgeon and lawyer living in Venice, Florida. He is the author of The Federalist Pages and cohost of Right Talk America With Julio and Rod. Dr. Gonzalez is presently serving in the Florida House of Representatives. He can be reached through www.thefederalistpages.com to arrange a lecture or book signing.


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Trump Must Appeal Acosta Ruling Based On Separation Of Powers

by Julio Gonzalez, M.D., J.D.

Judge Timothy Kelly, a Trump appointee, verbally ordered the President of the United States to reinstate CCN Reporter Jim Acosta’s hard pass to access the White House on Friday. The judge, who sits in the United States District Court for the District of Columbia, has not actually posted his ruling yet, forcing us, at least temporarily, to rely on press reports for details.

Predictably, CNN has called the ruling a huge victory for the First Amendment. However, according to numerous press reports, Judge Kelly took issue, not with any alleged affronts upon the First Amendment, but rather, the process used to revoke Acosta’s hard pass. According to one news outlet, the judge said that Sarah Huckabee Sander’s “belated efforts at [answering Acosta’s concerns] were hardly sufficient to satisfy due process.” Additionally, according to Breitbart, the judge found that in creating press conferences, the President created a public forum to which limited due process rights attach.

I disagree.

Contrary to Judge Kelly’s view, the White House press conference is an internal working of the executive branch done solely for a public relations and communications purpose and at the pleasure of the President of the United States. As such, and as reported previously by The Federalist Pageswhen the Court interferes with how the President conducts his press conferences, it is essentially intruding into the rightful powers of the President of the United States, as Chief Executive, in conducting the internal dealings of the executive branch.

Seen from this angle, which is the dominant issue in this matter, it becomes clear that the President must zealously pursue this case for the sake of the preservation of the autonomy of the executive branch.

Let’s be clear. There is no finality to Friday’s ruling.

The judge’s order was the implementation of a temporary restraining order against the President until such time that the case actually goes to trial. Strategically, the President now has a couple of opportunities available to him.

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First, he can let the case play it out at the District Court, and if the judge should rule against him at the trial, he can appeal. Alternatively, the President may appeal the temporary injunction as a matter of law, right now. Either way, it is imperative that the President take the case to the next level. If he does so, it is likely that a higher court would not accept the invitation for the judiciary to intrude into the inner workings of another branch of government.

If argued as a matter of separation of powers and the comity between the branches of government, it is likely the district court’s position will not be upheld. If it does, I am equally confident the Supreme Court will take this case because of the constitutional implications it carries to the inner workings of government, and will reverse it.

Make no mistake, although this case is being painted with a brush held by Acosta and the media, it actually represents yet another small but significant intrusion onto the proper balance of powers; an intrusion with which the Framers would be in total disagreement.

Dr. Julio Gonzalez is an orthopaedic surgeon and lawyer living in Venice, Florida. He is the author of The Federalist Pages and cohost of Right Talk America With Julio and Rod. Dr. Gonzalez is presently serving in the Florida House of Representatives. He can be reached through www.thefederalistpages.com to arrange a lecture or book signing.


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Constitution Justice Kavanaugh Media Truth

Kavanaugh And Thomas Could End Media Protection From Libel

By Julio Gonzalez, M.D., J.D.

On Feb. 29, 1960, Dr. Martin Luther King was arrested in Alabama on two counts of perjury for allegedly filing false state income tax returns. In response, and believing the case to be without merit, two groups, the Committee to Defend Martin Luther King and The Struggle For Freedom In The South, were formed with the aim of assisting Dr. King with the funding of his defense.  

On March 29, 1960, these two groups published a 10-paragraph advertisement in The New York Times with the aim of collecting such funds. The advertisement contained a description of multiple grievances that had occurred against the members of the black community in Montgomery.  

A number of the events depicted in the advertisement contained minor errors of fact while others were grossly inaccurate. For example, the advertisement contended that black students had demonstrated before the steps of the State Capitol while singing “My Country, Tis of Thee.”  In actuality the students sang the National Anthem.

In a more egregious reference, the students were said to have been padlocked in the dining hall of the Alabama State College Campus by the Montgomery police when they had not.  

Although the advertisement did not refer to City Public Safety Commissioner L. B. Sullivan by name or title, he contended that he was nevertheless libeled, as any false reference against the Montgomery police essentially referred to him, as its supervisor.  

Sullivan sued The New York Times and others for $500,000, the maximum allowable for libel in state court, and won. The case was appealed to the federal court and eventually reached the Supreme Court of the United States in 1964.

What resulted was a landmark case in American jurisprudence and the principal reason for the state of disrepair of American political discourse.

In New York Times, v. Sullivan, the Court placed great weight on the inherent ability of truth to naturally prevail. Seeing that erroneous statements are “inevitable in free debate,” the Court refused to uphold the libel charge brought forth from the lower court. Instead, it held that the importance of supporting “uninhibited, robust, and wide-open” debate that may include “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials” was more important than any protections it could give to public officials.

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The Supreme Court consequently reversed the lower court’s ruling and imposed a new standard for successful libel actions against public officials. According to the Court, in order for a public official to prevail in a libel action it must show that the defendant acted “with knowledge that the statement was false or with reckless disregard of whether it was false or not,” a standard known as “actual malice,” or “New York Times malice.”

Although accepted as bedrock in American jurisprudence dealing with public figures and elected officials, this case has been the source of great discussion amongst legal scholars. Is this near-impossible standard too high? Was the Court’s fear of self-censorship justified, or does the press and political opponents need a little self-restraint? Is the OK Corral attitude of the Court the better approach, or does such a cavalier attitude muddy speech and make the situation worse for voters? To this day, consensus on these questions does not exist.  

Fast forward 54 years to 2018 when a judge by the name of Brett Kavanaugh is nominated for a position in the Supreme Court of the United States. The man has an impeccable record as an adult, as a judge, and as a professional. He is one of the most revered and respected persons in his field. But at stake are the philosophical balance of the Court and the future of landmark abortion cases such as Roe v. Wade.

Predictably, Judge Kavanaugh’s confirmation hearing goes near flawlessly and his confirmation virtually sealed. But all of a sudden, after the conclusion of his confirmation hearings before the Senate Committee on the Judiciary, a completely unsubstantiated and uncorroborated accusation regarding his alleged conduct as a 17-year-old high school student (some 36 years prior) is brought against him. The accuser claims that Kavanaugh had engaged in a sexual assault against her at a party when she was 15 years old.

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Within days, other stories were told. Stories alleging that as a college student at Yale University, Kavanaugh exposed himself to a female student while they were both intoxicated at a dorm party. Again, no corroboration existed. And then there was another story of how Kavanaugh had been involved in drugged-out gang raping activities in high school parties in Maryland, but not a single piece of evidence substantiated the charge, either.

After a vile and disgusting display of deceit and political theater that gripped the nation and forever tarnished his reputation, Judge Kavanaugh was confirmed in the closest judicial confirmation vote in American history.

But Kavanaugh was not alone in falling victim to the predatory tactics enabled by the elevated burden of proof inherent to the New York Times malice standard. All over the country, candidates have attacked their opponents with false and misleading accusations. And because the judicial system offers littler refuge or recourse in these cases, unless the victims of these attacks are able to find sufficient funding to successfully ward them off, their reputations are smeared and their races brought to an end.  

And thus begins the endless barrage of negative campaign ads and misleading accusations. I should know; it happened to me; twice!

President Donald Trump has also fallen victim to these vicious attacks, except, in his case, it is the media that has been waging its propaganda war. Frustrated, the President has repeatedly called for an adjustment in the nation’s libel laws, most recently in comments relating to Justice Kavanaugh’s confirmation process. But in reality what needs to happen is an adjustment of “New York Times malice.”

Justice Kavanaugh is now a sitting member of the Supreme Court of the United States and flanked by another victim of kavanaughing, Justice Clarence Thomas. Having both been survivors of horrible and ruthless political denigration tactics, it stands to reason that these two justices would be much more sympathetic to protections against false and malicious speech against public officials than prior justices.  

Suddenly, there’s a new question for legal scholars and political observers alike: with two victims of egregiously false political speech sitting on the bench, a frustrated public, and a disgruntled President, will the Court be willing to take an ax to “New York Times malice” and restore a certain level of self-imposed responsibility upon the deliverers of political speech?  

I’m predicting we will soon find out.

Dr. Julio Gonzalez is an orthopaedic surgeon and lawyer living in Venice, Florida. He is the author of The Federalist Pages and cohost of Right Talk America With Julio and Rod. Dr. Gonzalez is presently serving in the Florida House of Representatives. He can be reached through www.thefederalistpages.com to arrange a lecture or book signing.


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