Yes, “Gun Control” is Unconstitutional

James Slate
Nov 9, 2017 · 8 min read

The social divide over the Second Amendment rages over the country, much like the wildfires tear through the forests of the Southwest. Fed by mass shootings and Anti 2A lies, it’s difficult to rationally answer the question of whether restrictions should be placed on gunowners.

So let’s start from the beginning. The Second Amendment of the greatest government document in the world’s history — the United States Constitution states that:

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.

What’s interesting about this language is that it states that the right to bear arms SHALL NOT be infringed. The Founding Fathers placed a bright-line prohibition on infringement of the right. They knew the difference between an outright prohibition and the providing to the federal government the ability to place reasonable restrictions on a right. For example, the Fourth Amendment prohibits “unreasonable” search and seizure.

Until 2010, the significant weakness of the Second Amendment was that, in some minds, it did not apply to state or local governments. These governments were free to make any regulations their state supreme courts held acceptable under the state constitutions. That’s why states like New York and California could virtually ban their citizens from bearing arms. But it all changed in 2010, when the United States Supreme Court decided McDonald v. Chicago.

What most 21st Century Americans simply do not grasp is that the Constitution and Bill of Rights were not written to to give rights to the citizens of our then-new nation, but was instead written to tightly constrain the federal government.

The Founders had just won a long and brutal war against a far-away foreign government, and the Federalists and Anti-Federalists were locked in a power struggle on just how much power the federal government in a swamp on the Potomac River would be allowed to have. The Federalists were concerned that the federal government would be anemic and far too weak to be of any use at all, while the Anti-Federalists wanted the power to remain where they felt it belonged, with the states, so that the people in each state could determine what is best for that state’s citizens.

The Bill of Rights was added to the Constitution to placate the concerns of the Anti-Federalists, and was mean to be ten strong chains binding down the then-puny federal leviathan to prevent future abuses.

The Second Amendment of the Bill of Rights was written by Founding Fathers who understood the right to bear arms as a natural human right that the Creator bestowed upon each and every human being. How can there be any other right, if the right to defend your life is not the most paramount right of them all?

They almost felt it silly to have to codify a natural right that was so obviously self-evident to them, but knowing that a federal government unchained is a federal government tyrannical, they ratified the basic human right to bear arms within the Second Amendment.

“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.”

The Founders and following generations thought this to be very clear language. They recognized a well-armed and well-trained citizenry as the well-regulated militia, and that having citizens both well-armed and well-trained with military-grade arms was imperative to the survival of the young Republic not just against foreign nations and native tribes, but also the ever-hungry, ever-corrupting desire of nation-states to grow and seize power for themselves, turning citizens into subjects, and subjects into slaves with both edicts and chains figurative and literal.

That the Second Amendment meant the federal government in Washington had no power to constrain or regulate arms was unquestioned reality for the first 143 years of our Republic, and then the Democrats of the 1930s, under the disreputable and dishonorable Franklin D. Roosevelt, decided that the Constitution and Bill of Rights no longer mattered.

FDR and his congress were bound and determined to enslave the states to the will of his federal government, and the National Firearms Act of 1934 was a direct challenge to the sovereignty of the states to make laws regarding firearms. It was also a thumb in the eye of the Founders who had clearly written the Second Amendment to mean that the federal government was constrained from passing gun laws.

That’s precisely what the Founders meant when they wrote that “the right of the people to keep and bear Arms, shall not be infringed” upon by the federal government. Quite simply, the Congress and President lack the constitutional authority to pass any gun laws.

Not a single one.

The only federal challenge to the constitutionality of National Firearms Act to date was U.S. vs Miller in 1939, which was uncontested when neither the defendant nor his attorney showed before the federal court.

If President Trump and a Republican-controlled Senate put a textualist judge on the high court to replace Antonin Scalia, which they already did and any or all or the three elderly liberal-to-moderate justices are replaced by textualists before Cox and Kettler come before the high court, there would seem to be a high likelihood that a strict reading of the Constitution and Second Amendment would regard the National Firearms Act as clearly being an unconstitutional usurpation of powers reserved for the states.

If the “Trump Court” is composed of a textualist majority and the cult of the “living Constitution” dies off, then there is a very strong possibility that the National Firearms Act of 1934, the Gun Control Act of 1968, the Firearm Owners Protection Act of 1986, and the proposed National Concealed Carry Reciprocity Act — literally every federal gun law, both for gun rights and for gun control — will be thrown out in short order as unconstitutional laws Congress never had the authority to pass, or laws that the federal government has the authority to enforce.

And no. States cannot pass Gun Control either Constitutionally. The 2nd Amendment as part of the United States Constitution is the supreme law of the entire country. See Article VI, Section 2:

Article VI, Section 2: 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; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Hence, no state has any authority to infringe on the right of the people to keep and bear arms. All federal AND state gun laws are a direct violation of the 2nd Amendment and are long overdue to be struck down.

In accordance with the 2nd Amendment any law, whether enacted by the United States Congress or by the respective states that infringe upon, or otherwise intend to control our right to keep and bear arms is a de facto violation of the 2nd Amendment and our God given right.

One must consider the reasons behind the Constitution and Bill of Rights. They were written to limit government (state and federal) and to give the US Citizens the rights, means and ability to protect themselves, and their unalienable rights, from all enemies, foreign and domestic. Those means and abilities are an extension of our God given rights in that the 2nd Amendment of the Constitution declares, with specificity, our right to own guns for whatever reason we deem necessary.

What Gun Legislation do I support that Doesn’t Violate the 2A?

Convicted Felons

Federal law and some states, like California, prohibit convicted felons from possessing arms. In some cases, the rationale for this prohibition seems reasonable. If someone is convicted of a crime where a gun is used for violence, such as murder or assault, it makes sense that person can’t be trusted to use guns responsibly. However, laws that prohibit all felonies from possessing arms, like federal law and California law, seem excessive. If someone is convicted of lying to the SEC about a securities insider trading law, I’m not sure that has anything to do with gun usage. Any prohibitions of felon firearm possession should be directly related to a crime that involved violent use of firearms.

Insane or Mentally Incompetent Persons

Not surprisingly, insane people or those adjudged mentally incompetent are barred from possessing firearms. This makes sense. Firearm ownership and use requires responsible use, and some people don’t have the mental capacity to make reasoned judgment about responsible usage.

Firearm Free Zones

Generally, you cannot carry a weapon in a school or court building. While superficially this may seem like a good idea, it suffers from the flaw that many laws that liberals make suffer from — it only affects law-abiding people. If someone is intent on shooting classmates or gunning down the opponent in a family support hearing, that person cares little for the law. Unfortunately, there will be no armed, responsible people to help (other than law enforcement, which may or may not be present).

Conclusion

I believe any law that infringes an American’s right to bear arms is unconstitutional. However, the Supreme Court disagrees. Forced to deal with that reality, the only gun control laws I favor on a public policy basis are those that prevent either those who have proved they can’t use firearms responsibly, or are mentally incapable of it. But I can’t favor the nearly 20,000 gun control laws that merely make gun ownership and possession more difficult (if not impossible) and more expensive for law-abiding citizens.

If we truly care about the Second Amendment, we can’t just focus on the prospect of new gun control proposals. We must work to end existing ones on the books, too. To speak only of the future is to infer the status quo is acceptable. It also leaves us vulnerable to tolerating new successful gun control measures. It is easy to forget yesterday if we’re continuously focused on tomorrow. Therefore, we must be opposed to all unconstitutional federal gun laws past, present, and future. The laws of today provide the stepping stones for those that may come.

James Slate

Written by

I Defend American Institutions and Foreign Policy from a Neoconservative Perspective

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