Americans make a big hubbub over the Fourth of July.
True, the victory of 1781 was an amazing triumph, and the vision of those gathered in Philadelphia five years before — that men may rightfully form or disband governments at will, for the higher purpose of protecting our God-given individual rights — is still worth celebrating.
But that confederation of free men ended after a mere dozen years, on June 21, 1788, when New Hampshire became the ninth state to ratify the new United States Constitution, making it the law of the land. At that point, the organization of free peoples created by the Declaration of Independence — the one we still celebrate each July — passed away.
Our government school teachers tell us this was necessary because the Articles of Confederation “weren’t working out.” But they are woefully light on specifics. Push them, and most will mutter uncertainly some trivia about seaboard states charging tariffs on goods transshipped to landlocked states. Point out that the first landlocked states — Vermont and Kentucky — weren’t admitted until 1791 and 1792, and they will usually fall into a puzzled, grumbling silence.
Anyway, there it is: The people fell for the siren song of “federalism,” accepting solemn promises that the powers of the new central government would be sharply limited to those expressly spelled out — funding a Navy, granting patents and copyrights, coining metal money. Not much more.
Fast forward 220 years. As a recipe for limited government, this Constitution now matches the creature it’s supposed to describe about as well as a Chihuahua’s carry-on “Pet Kennel” would fit a loping Irish wolfhound.
The prima facie proof of this failure now stares at us from every acre of the former marshland north of the Potomac, a granite necropolis and memorial park to our deceased freedoms at least a hundred times larger in manpower and frenzied ambition to control our lives than Mr. Jefferson could ever have imagined (though one suspects Mr. Hamilton would have smiled.)
In the face of this unchained monster, our thin remaining hope against outright tyranny lies in the fact that Rhode Island and North Carolina (bless them) outright refused to ratify that Constitution until a Bill of Rights was added — while Massachusetts, Maryland, South Carolina, New Hampshire, Virginia And New York all ratified only on the condition that some such set of amendments be quickly appended, as was solemnly promised.
And so, on the day we should probably celebrate as our SECOND great national holiday, on Dec. 15, 1791, Virginia became the 11th state to ratify the first 10 proposed amendments, Mr. Madison’s “Bill of Rights” — though a better name might be the “Bill of Prohibitions” on government conduct — thrown together in an attempt to placate such vociferous anti-federalists as Patrick Henry and Richard Henry Lee.
The anti-federalists warned the new government would never be hemmed in by the gossamer restrictions of a written Constitution. They were correct, of course — which is why their warnings are no longer taught in our government schools.
* An establishment of religion
To their credit, Aaron Zelman and J.E. Simkin of the little Milwaukee-based Jews for the Preservation of Firearms Ownership battled for months, back in 1999, to get city councils around the country to adopt proclamations honoring Dec. 15 as Bill of Rights Day — succeeding with a small, proud band including Randolph County, N.C.; Cobb County, Ga.; the City of Asheboro; the town of Rainier, Wash.; and spunky little Valley City, N.D.
It was also about that time that JPFO brought out the latest in their line of “Gran’pa Jack” comic books, “It’s Common Sense to Use Our Bill of Rights … Or Lose Them!” suitable to explain the Bill of Rights to any kid, aged 6 to 60 … of which more later.
But against Mr. Zelman’s admirable efforts, the question remains: Why do the folks now in charge of our national offices — including the government schools — so pass over and ignore the historic ratification of those 462 little words which have made us for two centuries the envy of men and women seeking freedom the world around — this Bill of Rights?
Because they fear folks might actually read them?
They’re in plain English, you know. It was never intended we should need an attorney to tell us what they mean — let alone that we should tolerate courts telling us they don’t mean what we can plainly read there for ourselves.
It couldn’t be because they’re afraid we’d actually go read the First Amendment, could it, which begins, “Congress shall make no law respecting an establishment of religion …”?
What does it mean for a government to “establish” a religion? Why, clearly, to establish one religion as that enforced by the government, against all others … like the Church of England.
Let us suppose, for instance, that an extremist cult were to arise, which holds it is a mortal sin to plow under any weed, or to destroy any bug or small verminous rodent which we may find on our own property, providing the priests of this extremist cult should decide (based on divine revelation) to list that weed or bug in their own scriptures as “threatened” or “endangered.”
That would be no problem, so long as the priests of this weird sect had no legal authority to do anything but preach against us from their own, private pulpits.
But let us now suppose the government were to erect a headquarters for this sect in Washington at taxpayer expense, and issue them guns and badges, empowering them to enter onto our private property, arresting and jailing us and seizing our land and homes if they should find us killing our own weeds and bugs, to which no one else can demonstrate any legal title?
That would be “an establishment of religion,” wouldn’t it, and thus banned under the First Amendment? Why, such extralegal usurpations might even tempt government agents to eventually storm, burn and massacre harmless citizens in their own churches of a Sunday afternoon, for practicing some religion not approved by Washington, mightn’t it? Thank goodness we have a First Amendment to prevent that kind of thing.
So that couldn’t be the one they don’t want us to read.
It couldn’t be because they’re afraid we’d actually go read the Second Amendment, could it? The one that says “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”?
* Shall not be infringed
What’s that word “free” doing in there?
Mr. Madison knew full well that no citizen-militia was necessary to protect the security of the kingdoms of France or Russia. Mercenary, professional, standing armies did just fine to protect their borders — at the price of their own disarmed populaces being subject to tyranny under the same muskets.
Only a “free” country requires that the bulk of the potential armed forces consist of free, private citizens better armed than the men commanded by the central government, just as the unofficial “Fairfax County Militia” of Messrs. Washington and Mason had been better armed than the special militia or “National Guard” available to obey the orders of the crown’s “governor of Virginia” in 1776 … else the Revolution still fresh in Mr. Madison’s mind could never even have been launched, let alone won.
What the Second Amendment clearly means is that — as a guarantee against the threat of internal government tyranny — any law-abiding American adult not an infant or obviously insane or severely retarded has a right to own and carry with him — down to the federal courthouse, to a rally in Washington City, or onto an airplane — a belt-fed 30-caliber Browning machine gun, or a shoulder-launched heat-seeking missile. (You’re not going to argue we could stand up to the FBI, the BATF, or the 87th Airborne with a Ruger 10-22 and a few old muzzle-loaders, I hope?)
For instance, the U.S. Fifth Circuit Court of Appeals found on Oct. 16, 2001, in the case U.S. vs. Timothy Joe Emerson (docket No. 99-10331):
“We have found no historical evidence that the Second Amendment was intended to convey militia power to the states … or applies only to members of a select militia while on active duty. All of the evidence indicates that the Second Amendment, like other parts of the Bill of Rights, applies to and protects individual Americans.
“We find that the history of the Second Amendment reinforces the plain meaning of its text, namely that it protects individual Americans in their right to keep and bear arms whether or not they are a member of a select militia or performing active military service or training.
“We reject the collective rights and sophisticated collective rights models for interpreting the Second Amendment. We hold, consistent with (U.S. vs.) Miller, that it protects the right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms, such as the pistol involved here. …”
“We agree with the district court that the Second Amendment protects the right of individuals to privately keep and bear their own firearms that are suitable as individual, personal weapons and are not of the general kind or type excluded by Miller, regardless of whether the particular individual is then actually a member of a militia.”
(Thus endeth our citation form the Fifth Circuit, which having gone to all the trouble of demonstrating the points at issue then promptly and predictably went astray and remanded to the lower court, ruling that taking away Dr. Emerson’s pistol under a court protective order issued during his divorce didn’t actually, you know … “infringe” his right to keep and bear arms.)
For when the Second Amendment says that right shall not be “infringed,” I would submit that means neither the weapon, nor its ammunition, nor the buying or transport of either, may be taxed, regulated, or subjected to any “permitting” process. The government can’t even require that the store clerk who sells me my machine gun “check my ID,” or write down my name.
Certainly, under a Constitution so amended, no congresswomen would ever be allowed to ban the import and private purchase of certain militarily useful firearms because their pistol grips and removable magazines makes them too useful to freedom-fighters … would they? Nor would any president be able to remain in office if he ordered surplus government M-1 Garands and Colt 1911s shredded and melted to keep them out of the hands of our own civilian militia … or banned the re-importation of American-made Garands and M-1 carbines without even submitting a bill to Congress, instead merely signing some royal decree, or so-called “executive order” … would he?
No; that’s all clear enough. So the Second Amendment can’t be the one they don’t want us to read.
* An impartial jury
Could it be they’re afraid we might read the Sixth Article of Amendment, which begins, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury …”
The high court, of course, now holds this doesn’t mean what it appears to mean to us non-lawyers, at all. Rather than see the courts grow too crowded, her eminence Sandra Day O’Connor now informs us no trial is required if the state agrees to jail us for fewer than 180 days … or even for fewer than 180 days on each charge.
But crowded courts are a self-correcting problem, once all defendants are guaranteed a “speedy” trial. The correct answer is to force every case to trial before a jury within one week … to ban all “plea bargains.” (Do we really believe the cops arrest all those people on the wrong charges?)
Forced to pick and choose the few cases they really have time to try, prosecutors would be forced (under the existing “speedy trial” provision) to promptly release the 95 percent of federal defendants who have committed no violent felony, but only violated some arbitrary bureaucratic edict. Aw, gee.
And by the way, what’s that word “impartial” doing in there?
The British common-law jury system with which the Founders were familiar made no provision for the judge to ask potential jurors in advance whether they favored the enforcement of the law in question … which is why the misguided government could never get any convictions in the North in the 1850s on charges of violating the hated Fugitive Slave Act, any more than a government saddled with the same jury system could convict William Penn in London, some years before, on charges of preaching a Quaker sermon.
Importantly, it is only the defendant who is guaranteed an impartial jury — we find here no guarantee that “the state shall enjoy …”
When the judge asks the jury pool whether anyone would have a problem sending someone to jail for smoking pot, or for owning an ancient collectable World War One machine gun without having previously submitted his fingerprints to the BATF, or for declining to pay a federal income tax on wages — and when that judge promptly sends home anyone who raises his or her hand — he is not empaneling an “impartial” jury; he is pre-screening a jury guaranteed to be predisposed to the government’s case. He is violating the Sixth Amendment.
The original term for a jury trial was a trial “en pays,” or “on the country.” The jury is supposed to represent a cross-section of our fellow citizens. Unless a law has broad — 92 percent, actually — public support, the chances are that a randomly-selected group of 12 citizens will include one member (8.33 percent of the panel) who finds the law a hateful abomination, and who will refuse to convict. Hung jury: Defendant walks.
That is the meaning, and the intent, of the Sixth Amendment prohibition on government taking away our life, liberty or property without “a speedy trial … by an impartial jury.”
Do you suppose that’s the one they don’t want us to read?
And what about the Tenth Amendment, which specifies, “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.”
This means 90 percent of the laws, agencies, orders and regulators now pouring forth from Washington City like a muddy torrent from a broken dam are null and void — deformed, fatherless creatures, apt to melt away like Goblins if ever exposed to the harsh daylight of the Bill of Rights.
* ‘Which one? Point to it’
It doesn’t matter whether you like these rights and prohibitions, or think it’s a good idea to “allow” them — any more than it matters whether you think we should “allow” the sun to rise tomorrow, or the birds to fly. It doesn’t work that way.
The several sovereign states only ratified the Constitution on our behalf on condition that these protections of our unalienable rights against government “infringement” be made the highest law of the land. Without the first 10 amendments, the whole contract is null and void … without them, there IS no legitimate federal government, and their tax collectors become nothing but common thieves, subject to being shot on sight if caught outside their federal enclave on the Potomac.
Any government official who declines to protect and defend these amendments, in their clear meaning, is a traitor, in violation of the sacred oath they all take to protect and defend this Constitution. Such persons should be indicted — impeached, if they are high officials — and, only if convicted by either the Senate or an impartial citizen jury, hanged.
This includes a whole lot of Congressmen, who have voted for a massive snare of laws which “sounded like a good idea” without doing their sworn duty, which was to open said Constitution to Article I Section 8 (the Powers of Congress), scan through the 431 words found there, and then ask the sponsor, “Which one of these 18 sentences gives you the specific, delegated power to spend FEDERAL tax money to pay the medical bills of barefoot Appalachian widows? Which one? Point to it.”
All these things we can learn by merely reading our U.S. Constitution, which Barack Obama will swear on a Bible (presumably) on Jan. 20 to “preserve and protect,” whereupon — like pretty much every president since Grover Cleveland and Rutherford B. Hayes (with the possible exceptions of Hoover and Harding; see Ivan Eland’s fine new book “Recarving Rushmore”) — he will smile and proceed to ignore all those limits on central government power, probably within the first hour.
So many restrictions on government power, so concise and clearly written. How strange, that all of them would now turn out to be moot, or out-of-date, or of no practical bearing.
I believe it was columnist Joe Sobran who once said that a government under the U.S. Constitution would not be ideal — it would just be a whole lot better than the one we’ve got now.
Last time I checked, the comic book “Gran’pa Jack No. 3: ‘Common Sense’ ” was available at $4 per single copy, $20 for 25, $30 for 50, from Jews for the Preservation of Firearms Ownership, P.O. Box 270143, Hartford, WI 53027
The first Gran’pa Jack comic, “ ‘Gun Control’ Kills Kids,” was also still available. See www.jpfo.org/filegen-a-m/gpjack3.htm or telephone the JPFO at 262-673-9745 or 1-800-869-1884.
Meantime, go buy a copy of the Declaration of Independence, and the Bill of Rights, and read them to a child.
It’s our next-to-last last hope.
A version of this column was first published in 1999.