Within the last day or so my attention has been drawn (or directed, if you will) to the Montana Shooting Sports Association’s website dedicated to the Firearms Freedom Act. Now, it is not to say I did not know about this, as I did. Rather, now that virtually all legal remedy for Wayne Fincher being exhausted with no satisfactory resolution for Wayne, there is little else to do but turn attention to the greater core issues at stake in virtually all Second Amendment cases. It is not that those issues were not touched on in Wayne’s case. They were. But then the Court’s hand was drawn back as if it touched a red hot stove. Even at the level of the Supreme Court, there was and is an allergy to really looking at the true intent of the Founders when it comes to firearms.

Perhaps the Firearms Freedom Act will change that. But I doubt it.

The reason I doubt it is because the courts have traditionally not employed the English language in a way that anyone else versed in English understands. The higher you go in the Federal courts, the worse the problem gets, and the more allergic they are to addressing the fundamentals of grammar and usage as applied to the Constitution and all laws promulgated subsequently.

They are particularly allergic to standard English grammar and usage when it comes to the Second and Tenth Amendments, much preferring to deal with arcane, largely irrelevant, side issue without addressing the fundamental error that has existed since (at least) the Civil War, and certainly since the National Firearms Act of 1934.

If we will remember, the National Firearms Act, all subsequent gun control acts and all court decisions upholding those acts, operate under the auspices of the Commerce Clause of the Constitution, which gives rise to an interesting question. But first, reading the dictionary is in order:

a·mend·ment  (-mndmnt)
n.
1. The act of changing for the better; improvement: “Society may sometimes show signs of repentance and amendment” (George G. Coulton).
2. A correction or alteration, as in a manuscript.
3.    a. The process of formally altering or adding to a document or record.
b. A statement of such an alteration or addition: The 19th Amendment to the Constitution gave women the right to vote.
4. A material, such as organic matter or sand, mixed into soil to improve growing conditions.1

Hence, we are given to understand, that in English grammar and usage, an amendment always amends or changes the text it applies to. Thus, when the Founders added the first ten amendments to the Federal Constitution and made an explanatory statement:

PREAMBLE
The conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution.

They did so with the intent that all should know the ground and purpose of amending a brand new document. It was not that the document was defective. Neither was it that they wished to go beyond the scope of the document. Rather, the amendments were added to prevent misconstruction and abuse of power by those subject to the document i.e. the Federal Government.

Before continuing, we would do well to understand one fundamental fact:

The Federal Constitution is not applicable to the private citizen who does not fulfill any role in the Federal Government.

We should be able to perceive this by the fact that the Federal Constitution authorizes and creates offices, and defines their duties and subsequent powers for carrying out those duties. There is a brief section in the Constitution that insures that the several states do not usurp certain powers belonging to the Federal Government. In that regard, the Federal Constitution thus applies to the citizen who fulfills duties in a state government. However, it goes no further than this in applying to any citizen, or any other person for that matter.

So it is that the Federal Constitution is the law for the operation of a Federal Government, and is not applicable to individual citizens operating in a purely private capacity. The Federal Constitution applies to the President,  and officers of Executive branch, Senators and Congressmen, and officers of the Legislative branch, the judges of the Supreme Court and all officers of the Judicial branch, down to the janitor in the Federal magistrate court. It is applicable to the officers of the governments of the several states in an injunctive capacity only, but no further.

Hence, this document called the Federal Constitution, is a document that is not merely a guide, but law, and law for the operation of a government on the Federal level. Thus, to prevent misconstruction and abuse of power of that law by those whom the law applies to, the Founders amended that law with ten fundamental amendments designed to operate as a check and arresting mechanism. Moreover, those ten amendments do not specifically address certain sections of the Federal Constitution, but are general and broad, thus applying to the whole of the document. If we examine the whole of the Federal Constitution, and then examine the whole of the Bill of Rights we will find that no amendment applies to any specific portion of the Constitution. When this is the case, the accepted rule of interpretation and construction is broad, applying to the whole of the body of the document in question.

Perhaps then we should be moved to ask:

What is our rule for interpretation and construction of the document itself?

To answer that, it would be essential to look at the documents written in support of the Federal Constitution, and the arguments offered in favor of its ratification. From such documents we find a clear rule for determining how we should interpret this document and thus construct laws arising out of it. For our understanding, three examples of the understanding of the Founders are accurately representative of their views of, and intentions for the then new document.

James Madison, in the Federalist No. 45:

“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.”

Alexander Hamilton explained in the Federalist 84:

“I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted.  For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?”

And from the Debates in North Carolina:

Mr. Iredell
With regard to a bill of rights, this is a notion originating in England, where no written constitution is to be found, and the authority of their government is derived from the most remote antiquity. The Magna Charta itself is no constitution, but a solemn instrument ascertaining certain rights of individuals, by the legislature for the time being; and every article of which the legislature may at any  time alter. This and a bill of rights also, the invention of later  times, were occasioned by great usurpations of the crown, contrary, as  was conceived, to the principles of their government, about which there was a variety of opinions. But neither that instrument, nor any other instrument, ever attempted to abridge the authority of Parliament, which is supposed to be without any limitations whatever. Had their constitution been fixed and certain, a bill of rights would have been useless, for the constitution would have shown plainly the  extent of that authority which they were disputing about. Of what use, therefore, can a bill of rights be in this Constitution, where the people expressly declare how much power they do give, and consequently retain all they do not? It is a declaration of particular powers by the Debates to their representatives, for particular purposes. It may be considered as a great power of attorney, under which no power can be exercised but what is expressly given. Did any man ever hear, before,  that at the end of a power of attorney it was said that the attorney should not exercise more power than was there given him? Suppose, for instance, a man had lands in the counties of Anson and Caswell, and he should give another a power of attorney to sell his lands in Anson, would the other have any authority to sell the lands in Caswell? — or could he, without absurdity, say, “’Tis true you have not expressly authorized me to sell the lands in Caswell; but as you had lands there, and did not say I should not, I thought I might as well sell those lands as the other.” A bill of rights, as I conceive, would the case, not only be incongruous, but dangerous. No man, let his ingenuity be what it will, could enumerate all the individual rights not relinquished by this Constitution. Suppose, therefore, an enumeration of a great many, but an omission of some, and that, long after all traces of our present disputes were at an end, any of the omitted rights should be invaded, and the invasion be complained of; what would be the plausible answer of the government to such a complaint? Would they not naturally say, “We live at a great distance from the time when this Constitution was established. We can judge of it much better by the ideas of it entertained at the time, than by any ideas of our own. The bill of rights, passed at that time, showed that the people did not think every power retained which was not given, else this bill of rights was not only useless, but absurd. But we are not at liberty to charge an absurdity upon our ancestors, who have given such strong proofs of their good sense, as well as their attachment to liberty. So long as the rights enumerated in the bill of rights remain unviolated, you have no reason to complain. This is not one of them.” Thus a bill of rights – might operate as a snare rather than a protection. If we had formed a general legislature, with undefined powers, a bill of rights would not only have been proper, but necessary; and it would have then operated as an exception to the legislative authority in such particulars. It has this effect in respect to some of the American constitutions, where the powers of the legislature are general. But where they are powers of a particular nature, and expressly defined, as in the case of the Constitution before us, I think, for reasons I have given, a bill of rights is not only unnecessary, but would be absurd and dangerous.2

We should note the consistency of thought in the citations pertaining to the ability of the Federal Government as created by the Federal Constitution, to exercise power and the extent of that exercise of power — that it is extremely limited, and limited by the text of the Constitution to those things which are expressly defined in the body of the document. To quote Mr. Iredell again:

It may be considered as a great power of attorney, under which no power can be exercised but what is expressly given. Did any man ever hear, before,  that at the end of a power of attorney it was said that the attorney should not exercise more power than was there given him? Suppose, for instance, a man had lands in the counties of Anson and Caswell, and he should give another a power of attorney to sell his lands in Anson, would the other have any authority to sell the lands in Caswell? — or could he, without absurdity, say, “’Tis true you have not expressly authorized me to sell the lands in Caswell; but as you had lands there, and did not say I should not, I thought I might as well sell those lands as the other.”3

In response to his argument, we find in ratifying the Bill of Rights, these two “catch-all” amendments:

AMENDMENT IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

AMENDMENT X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Could I, without contradiction, make mention of the absurdity of our present state of government? But I digress.

In returning to the previously cited definition of the word “amendment,” the stated intention of the first ten amendments to the Federal Constitution found in the preamble to the same, and the rule for interpretation of the Federal Constitution, let us place them together and consider whether the “Commerce Clause” of the Constitution has any power, or can have any power over arms, or can exercise regulation of the production, distribution, sale, ownership, possession, or bearing of the same.

The commerce clause, found in the body of the Constitution itself, is defined in the following manner:

Article I, section 8: The Congress shall have Power . . .
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

According to the aforementioned, the above clause, with respect to arms, is modified by the following:

AMENDMENT II
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

AMENDMENT IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

AMENDMENT X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

According to the rules of interpretation and construction as defined by the Founders, and in accordance with their understanding, the following questions must be raised and contemplated:

  1. Where in the commerce clause is it expressly stated that Congress may regulate the manufacture, distribution, sale, possession or bearing of arms within the borders of any of the several states?
  2. Where is it expressly stated in the above clause that Congress may regulate in any fashion the manufacture, distribution, sale, possession or bearing of arms by an individual citizen for that citizen’s private purposes?
  3. Where is it expressly stated in the commerce clause that Congress has the power to regulate any private citizen’s transport of personal arms from one state to another for private purposes and not for the purposes of commerce?

Knowing what is plainly and clearly delineated in the aforestated, can anyone, without absurdity, find for Congress or any other branch of the Federal government, the ability, the power to regulate arms as they have so done?

I think not.

Of course, if one is “willfully ignorant” what would we expect but absurdity?

How very convenient.

  1. The American Heritage® Dictionary of the English Language, Fourth Edition copyright ©2000 by Houghton Mifflin Company. Updated in 2009. Published by Houghton Mifflin Company. All rights reserved. [↩]
  2. The Origin of the Second Amendment, pp. 491-493, David E. Young, Golden Oak Books, 1991, citing Debates, IV, pp. 137-138, 140-141, 148-149. [↩]
  3. Ibid [↩]
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3 Responses to “A Convenient Ignorance”

  1. 15:10, 22 February, 2010 р.
    Paladin says:

    If the US Constitution was not intended to apply against the states, why do the States have to “ratify” it?  If they aren’t bound by it, what’s the purpose of ratification?

    How do you explain that something designated as “the supreme law of the Land” is not a restriction on State governments.

    What do the following excerpts from Article VI mean then?

    “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.
    The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; ….”

    Inquiring mind of freedom would like to know.

  2. 20:08, 22 February, 2010 р.
    W W Woodward says:

    I am convinced that, even if the commerce clause may be determined to give the congress the power to regulate and or otherwise control the use of firearms, the 2nd amendment effectively trumps the commerce clause. I reference the definition of the word ”Amendment” found elsewhere in your article.
    [W-III] 

  3. 16:09, 2 March, 2010 р.
    Incongruence | MOWCA Blog says:

    [...] I understand your point in “A Convenient Ignorance”, you’re saying that, 1.  The US Constitution does not act as a restraint on the individual [...]