Publius-Huldah's Blog

Understanding the Constitution

From Duty to be Armed to Permission to Carry

By Publius Huldah

“If the central government has the authority to tell a state it must accept permits from all the other states, then it also has the authority to tell a state it may not accept a concealed permit from any other states. If the central government can do these things it can set up a national concealed carry permit scheme and in essence bring into existence a national arms registry. That is exactly where this is headed.” Attorney Richard D. Fry 1

Some are touting the federal Concealed Carry Reciprocity Act of 2017 (HR 38) as a bill which would expand our right to carry. But if you will walk with me for a few minutes, I’ll show you a better path to take.

Let us look at the applicable First Principles, to which I propose we return.

1. Gun control is not an enumerated power delegated to the federal government

Our federal Constitution doesn’t delegate to the federal government any power over the Country at Large 2 to restrict our arms. Accordingly, all pretended federal laws, regulations, orders, opinions, or treaties which purport to do so are unconstitutional as outside the scope of powers delegated. They are also unconstitutional as in violation of the Second Amendment.

The only power the federal government has over the Country at Large respecting arms is set forth at Article I, §8, clause 16 with respect to providing for the “organizing, arming, and disciplining, the Militia”. Pursuant to this clause, Congress passed the Militia Act of 1792 which required every able-bodied male citizen (with a few exceptions) between the ages of 18 and 45 to acquire a rifle, bayonet, ammo, ammo pouch, and report to his local Militia Unit for training. 3

2. What does your State Constitution say about the right to keep and bear arms?

Each State has its own Constitution which addresses its State Militia and the right to be armed.

Now listen: No State may lawfully make any law which contradicts its State Constitution or which interferes with Congress’ power to “organize, arm, and discipline, the Militia”.

Accordingly, any State Statute which purports to require a permit before one may carry a gun is probably unconstitutional under that State’s Constitution; and is certainly unconstitutional under the federal Constitution because Congress may lawfully require able-bodied male Citizens to acquire firearms and ammo and report to their local Militia Unit for training!

Do you see?

Now let’s look at Title 18, US Code, Part I, Chapter 44, which HR 38 proposes to amend.

3. Title 18, US Code, Part I, Chapter 44 is unconstitutional

It sets up a complex federal regulatory scheme over firearms, every word of which is unconstitutional as outside the scope of powers delegated, and as in violation of the Second Amendment.

HERE it is, look through it (§§ 921-931).

4. What HR 38 actually does

HR 38 proposes to amend this existing federal regulatory scheme to insert a new provision [to be § 926 D] to require States which have a statute which permits residents of their State to apply for a permit [!] to carry a concealed firearm

to allow persons from other States:

· who aren’t prohibited by federal law from possessing firearms [!]; and

· who are carrying a photographic ID issued by a government body [!]; and

· who are carrying a concealed carry license or permit from the other State [!],

to possess or carry a concealed handgun (other than a machinegun or “destructive device”) which has been shipped or transported in interstate or foreign commerce.

So! Even though a State Constitution, such as that for Connecticut, 4 prohibits the State Legislature from making ANY laws restricting firearms (such as imposing requirements for registration, a permit, government issued photo ID), a Citizen of Connecticut who exercises his constitutionally recognized right to carry without registration or a permit or a government issued photo ID, wouldn’t qualify under HR 38 for concealed carry in another State.

To qualify for concealed carry in other States, the Citizen of Connecticut would need his State Legislature to pass a law [which is unconstitutional under the Connecticut and federal Constitutions], so that he could comply with an unconstitutional federal statute [HR 38], so that he could carry in other States which also would have to pass unconstitutional laws imposing permit requirements on those who carry concealed.

Do you see how a God-given right [self-defense] is thus converted into a privilege which is regulated, granted, or denied, by civil government?

HR 38 also provides that any person carrying a concealed handgun in a State under the reciprocity provisions may also carry concealed in the public parts of National Parks and certain other lands under federal control. Lest you think this a gain, consider that: (1) The Constitution doesn’t authorize the federal government to operate national parks and such like, and (2) the federal government has no lawful authority to impose registration requirements for carrying arms anywhere!

5. What’s the solution?

Read our Declaration of Independence and federal Constitution. Then you won’t fall for unconstitutional gimmicks like HR 38.

The gun rights organizations could perform valuable services to our Country by working for:

· the repeal of the entire unconstitutional federal regulatory scheme respecting arms;

· the repeal of all unconstitutional State regulatory schemes;

· the revitalization of the State Militia to replace the federally controlled National Guard; 5 and

· by providing more classes for Citizens in arms training.

And please stop lobbying for unconstitutional federal legislation!

Endnotes:

1 From the late Attorney Richard D. Fry’s email of Dec. 10, 2015 to US Senator Moran, a co-sponsor of SB 498, the Constitutional Concealed Carry Reciprocity Act of 2015. Richard, who was my Friend, sent me a copy of his letter.

2 Pursuant to Article I, § 8, next to last clause, Congress has general legislative powers over the District of Columbia, military bases, dock yards, mints, federal courthouses and post offices, and such other places needed for Congress to exercise its enumerated powers. The exercise of such powers by Congress over these small federal enclaves is restricted by the Bill of Rights – including the 2nd Amendment. So Congress is prohibited from making, for these federal enclaves, any laws which infringe the Right of The People to keep and bear Arms. Congress may properly require individuals visiting federal prisons, the psych ward of military hospitals, the mint, federal courthouses, and such like, to leave their arms in their vehicles. But Congress may not require Citizens to obtain and carry a permit or photo ID as a condition precedent to carrying a firearm.

3 The “Militia of the several States” were creatures of State Statutes – not of the federal government. Dr. Edwin Vieira’s short video shows how the State Militia were replaced by the federally controlled National Guard.

4 The Constitution of the State of Connecticut says at Article I: “SEC. 15. Every citizen has a right to bear arms in defense of himself and the state.”

5 See A SERIOUS QUESTION FOR THE NRA, by Dr. Edwin Vieira, re revitalization of the Militia of the several States. Dr. Vieira’s mind is a delight.

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July 19, 2017 Posted by | 2nd Amendment, concealed carry reciprocity act, gun control, Militia | , , , , , , , | 21 Comments

Publius Huldah shows federal gun control is unlawful

 

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March 3, 2013 Posted by | 2nd Amendment, armed citizens, gun control, marque and reprisal, Militia, Resistance to tyranny, Tennessee Constitution | , , | 53 Comments

Gun Control, the Dick Act of 1903, Bills of Attainder & Ex Post Facto Laws

By Publius Huldah

The latest round of rubbish flooding our in boxes is an ignorant rant claiming that the Dick Act of 1903 (which the purveyors of rubbish claim respects our Right to be armed) can’t be repealed because to do so would “violate bills of attainder and ex post facto laws”.

Who dreams up this stuff? Does anyone check it out before they spread it around?

Of course we have the God-given right to keep and bear arms, to self-defense, etc., etc.  Our Declaration of Independence (2nd para) recognizes that our Rights come from God and are unalienable.

The 2nd Amendment to our federal Constitution recognizes that this God-given right to keep and bear arms is to be free from any interference WHATSOEVER from the federal government.

Our Framers were all for an armed American People – they understood that arms are our ultimate defense in the event the federal government oversteps its bounds.  See, e.g., what James Madison, Father of Our Constitution, writes in the second half of Federalist Paper No. 46!  The reason the Citizens – the Militia – are armed is to defend ourselves, our families, our neighborhoods, communities, and States from an overreaching, tyrannical federal government.

Accordingly, the federal government is nowhere in the Constitution granted authority to abridge, restrict, or infringe,  in any fashion whatsoever, guns, ammunition, etc. Thus, ALL such restrictive laws made by Congress, and ALL regulations made by the Bureau of Alcohol, Firearms, and Tobacco (ATF), are unconstitutional as outside the scope of the powers granted to Congress and to the Executive Branch by our Constitution. Restriction of arms and ammunition is NOT one of the “enumerated powers” delegated to Congress or the Executive Branch.

Furthermore, all pretended regulations made by the ATF are also unconstitutional as in violation of Art. I, Sec. 1, U.S. Constitution, which vests ALL legislative powers granted by the Constitution in CONGRESS.   Executive agencies have no lawful authority whatsoever to make rules or regulations of general application to The People!

In addition, the President and the Senate may not lawfully by treaty do anything the Constitution does not authorize them to do directly.   Since the Constitution does not authorize the federal government to disarm us, the federal government may not lawfully do it by Treaty.   See, https://publiushuldah.wordpress.com/2009/09/19/the-treaty-making-power-of-the-united-states/

But the assertion that one Congress may not repeal acts of a previous Congress is idiotic.

And the assertion that Congress can’t repeal the Dick Act because a repeal would “violate bills of attainder and ex post facto laws” shows that whoever wrote that doesn’t know what he is talking about. He obviously has no idea what a “bill of attainder” is, and no idea what an “ex post facto law” is.

This accurately explains what a “bill of attainder” is: http://www.historylearningsite.co.uk/Bill-of-Attainder.htm

An “ex post facto” law RETROACTIVELY criminalizes conduct which was not criminal when it was done.

Say you barbequed outside last Sunday. That was lawful when you did it. Next month, Congress makes a pretended law which purports to retroactively criminalize barbequing outdoors. So, now, what you did is a crime (for which you are subject to criminal prosecution); even thou when you did it, it wasn’t a crime. That is an ex post facto law.

Now, say Congress passes a pretended law making possession of firearms a crime and ordering everyone to turn in their guns. Only if you do not turn in your guns will you have committed a “crime”.  That is not an ex post facto law because if you turn in your guns, you won’t be criminally prosecuted. The “crime” is the failure to turn in your guns – not the prior possession of guns.

Such a law would be totally UNCONSTITUTIONAL, because gun control is not one of the enumerated powers of Congress. Thus, the law would be outside the scope of the powers delegated to Congress.

It would also be unconstitutional as in violation of the 2nd Amendment.

But it would not be an ex post facto law.  See postscript below!

People shouldn’t sling around terms, the meanings of which, they do not understand. It is immoral.

If TRUTH spread as rapidly as lies, our problems would have been resolved long ago.  But if People can come to love TRUTH more than they love the ignorant rubbish they circulate, perhaps it is not too late to restore our Constitutional Republic. PH

Endnote:

In Federalist Paper No. 84 (4th para), Alexander Hamilton says re ex post facto laws (and of the importance of the writ of habeas corpus):

“…The creation of crimes after the commission of the fact, or, in other words, the subjecting of men to punishment for things which, when they were done, were breaches of no law, and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny…” PH

Postscript added Jan 17, 2014:  None of us are infallible – all of us must be willing to rethink what we think we know.  I have rethought this and now believe that such a law would be an ex post facto law in violation of Art. I, Sec. 9, cl. 3 of the Constitution (if the Congress passed the law) or Art. I, Sec. 10, cl. 1 (if a State passed such a law).  At the time a person acquired the gun, it was completely legal to possess it.  To then make it unlawful to not turn in your guns – or to do as Connecticut did and say you have to register all your existing guns or it’s a felony – makes unlawful something which was lawful when you did it.  So mea culpa, Folks!  And never shrink from saying you were wrong when you were wrong.

Posted January 19, 2013; revised Jan 21, 2013; Jan. 17, 2014; May 22, 2016

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January 19, 2013 Posted by | 2nd Amendment, Bills of attainder, Bureau of Alcohol Firearms and Tobacco (ATF), Dick Act of 1903, ex post facto laws, gun control, Militia, Rulemaking by Executive Agencies | , , , , , , , | 56 Comments

   

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