The Senate and your guns
by Hari Heath
Many liberty-minded Americans realize the pivotal importance of the Right to keep and bear arms. The ongoing infringement of that Right has many of us justifiably “up in arms.”
It would seem there is an overt design to destroy our Rights because a simple investigation would reveal the obvious: the Bill of Rights enumerates the right of each citizen to possess and bear arms; the courts have recognized this right as a fundamental right antecedent to the Constitution; and in spite of clear unambiguous language declaring that the “Right to keep and bear arms shall not be infringed,” infringement is the current and continuing course of action for the Congress and administrative agencies.
Among the evidence that this infringement is an intentional act is a 1982 Senate Report: The Right to Keep and Bear Arms. The Subcommittee on the Constitution of the Committee on the Judiciary, United States Senate, Ninety-Seventh Congress, Second Session published this report (U.S. Government Printing Office, 88-618 0 WASHINGTON: 1982). The cover lists Strom Thurmond, Joseph Biden, Edward Kennedy, Orrin Hatch, Robert Byrd, Robert Dole, Howard Metzenbaum, Alan Simpson, Dennis DeConcini, Patrick Leahy, Max Baucus, Arlen Specter and others as members of the committee which published this report, therefore, they should know what the Right to Keep and Bear Arms means.
The report is quite favorable to the recognition of the individual's Right to possess arms. It details the history of the Right, even the duty, of bearing arms. Its historical analysis begins with examples of English laws requiring an armed citizenry. The American colonial and revolutionary era is covered along with pertinent facts about our nation's founders and their attitudes regarding an armed population. There is also a review of early and contemporary court rulings on the subject. An appendix exemplifies a broad cross section of case law on many aspects of the Right to Keep and Bear Arms.
A concluding section details the “Enforcement of Federal Firearms Laws From the Perspective of the Second Amendment.” It begins with a brief discussion of the 1934, 1938 and 1968 federal firearms acts. The bulk of this section provides many stories of BATF abuses (circa 1982) and accompanying statistics.
History of the Right in Britain
The report begins with laws from the reign of Alfred the Great (872 A.D.) which required “all English citizens from the nobility to the peasants were obliged to privately purchase weapons and be available for military duty.” Even after the Norman conquest, the right and duty of arms possession was retained. Under the Assize of Arms of 1181, “the whole community of freemen between the ages of 15 and 40 were required by law to possess certain arms.”
“In 1253, another Assize of Arms expanded the duty of armament to include not only freemen, but also villeins, who were the English equivalent of serfs. In 1285, Edward I commanded that all persons comply with the earlier Assizes and added that 'anyone else who can afford them shall keep bows and arrows,'” the Senate report explained.
The report cites a few examples of ancient “weapons control” laws, since they predate the invention and use of the gun. “In 1279, it was ordered that those appearing in parliament and other assemblies 'shall come without all force and armor, well and peaceably.'
“A 1328 statute of Northampton ordered that no one use their arms in 'an affray of the peace, nor to go nor to ride armed by day or night in fairs, markets, nor in the presence of the justices or other ministers.' English courts construed this ban consistently with the general right of private armament as applying only to the wearing of arms 'accompanied with such circumstances as are apt to terrify the people.'”
In 1503, Henry VII limited the shooting of, but not the possession of crossbows to certain wealthier landowners, with an exception for those who “shote owt of a howse for the lawefull defens of the same.”
By 1511, Henry VIII increased the land ownership requirement for shooting crossbows while expanding the requirement of longbow ownership, requiring all citizens to “use and exercyse shootyng in longbowes, and also have a bow and arrow contynually” in the house. “Fathers were required by law to purchase bows and arrows for their sons between the age of 7 and 14 and to train them in longbow use,” the report states.
In 1514, the limitations on crossbow shooting was extended to include firearms, but by 1533, the property qualifications were reduced, and eventually King Henry repealed the entire statute.
The report further informs our Senate that “the later Tudor monarchs continued the system [of an armed citizenry] and Elizabeth added to it by creating what came to be known as 'train bands,' selected portions of the citizenry chosen for special training.
“These trained bands were distinguished from the 'militia,' which term was first used during the Spanish Armada crisis to designate the entirety of the armed citizenry.
“The militia continued to be a pivotal force in the English political system. British historian Charles Oman considers the existence of the armed citizenry to be a major reason for the moderation of monarchical rule in Great Britain; 'More than once he [Henry VIII] had to restrain himself, when he discovered that the general feeling of his subjects was against him... His 'gentleman pensioners' and his yeoman of the guard were but a handful, and bill or bows were in every farm and cottage.”
Similar to our current Orwellian “Patriot Act,” Charles II “opened his reign with a variety of repressive legislations, expanding the definition of treason, establishing press censorship and ordering his supporters to form their own troops.
“In 1662, a Militia Act was enacted empowering officials 'to search for and seize all arms in the custody or possession of any person or persons whom the said lieutenants or any two or more of their deputies shall judge dangerous to the peace of the kingdom.' Gunsmiths were ordered to deliver to the government lists of all purchasers. These confiscations continued under James II, who directed them particularly against the Irish population.”
Colonial Gun Laws
The senate report continues with colonial history. “In 1623, Virginia forbade its colonists to travel unless they were 'well armed'; in 1631 it required colonists to engage in target practice on Sunday and to 'bring their peeces to church.' In 1658 it required every householder to have a functioning firearm within his house and in 1673 its laws provided that a citizen who claimed he was too poor to purchase a firearm would have one purchased for him by the government, which would then require him to pay a reasonable price when able to do so. In Massachusetts, the first session of the legislature ordered that not only freemen, but also indentured servants own firearms and in 1644 it imposed a stern six-shilling fine upon any citizen who was not armed.
“When the British government began to increase its military presence in the colonies in the mid-eighteenth century, Massachusetts responded by calling upon its citizens to arm themselves in defense. When British troops seized a militia arsenal in September, 1774, 60,000 citizens took up arms.”
Constitutional debates on the Militia
“Following the revolution, but previous to the adoption of the Constitution, debates over militia proposals occupied a large part of the political scene. All of the proposals called for a general duty of all citizens to be armed, although Baron von Steuben and others also emphasized a 'select militia' which would be paid for its services and given special training. In this respect, this 'select militia' was the successor of the 'trained bands' and the predecessor of what is today the 'national guard.'
“A Connecticut writer complained that 'this looks too much like Baron von Steuben's militia, by which a standing army was meant and intended.' A Pennsylvania delegate argued, 'Congress may give us a select militia which will, in fact, be a standing army -- or Congress, afraid of a general militia, may say there will be no militia at all. When a select militia is formed, the people in general may be disarmed.'
“Richard Henry Lee wrote, 'should one fifth or one eighth of the people capable of bearing arms be made into a select militia, as has been proposed, and those the young and ardent parts of the community, possessed of little or no property, the former will answer all the purposes of an army, while the latter will be defenseless.'”
The report confirms what many proponents of the individual's Right to keep and bear arms proclaim: “The suspicion of select militia units expressed in these passages is a clear indication that the framers of the Constitution did not seek to guarantee a State right to maintain formed groups similar to the National Guard, but rather to protect the right of individual citizens to keep and bear arms. Lee, in particular, sat in the Senate which approved the Bill of Rights. He would hardly have meant the Second Amendment to apply only to the select militias he so feared and disliked.
“When the first Congress convened for the purpose of drafting a Bill of Rights, it delegated the task to James Madison. Madison did not write upon a blank tablet. Instead, he obtained a pamphlet listing the State proposals for a Bill of Rights and sought to produce a briefer version incorporating all the vital proposals of these.”
Madison's original article to secure the right to keep and bear arms read: “The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.
The militia clause was later placed in front of the clause proclaiming the people's right and the conscientious objector clause was removed so that it finally read as: “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 report further states that: “the Senate in the process [of drafting and adopting the Bill of Rights] indicated its intent that the right be an individual one, for private purposes, by rejecting an amendment which would have limited the keeping and bearing of arms to bearing 'for the common defense.'
A lawful Right
George Tucker published an 1803 edition of Blackstone annotated to American law which followed Blackstone's British citation of the right of the subject “of having arms suitable to their condition and degree, and as such as are allowed by law.” Tucker cited the Second Amendment and added “and this without any qualification as to their condition or degree, as is the case in the British government.”
William Rawle published View of the Constitution in 1825 and noted that “under the Second Amendment the prohibition is general. No clause in the Constitution by a rule of construction be conceived to give Congress a power to disarm the people.”
Joseph Story in his Commentaries on the Constitution “considered the right to keep and bear arms as 'the palladium of liberties of the republic,' which deterred tyranny and enabled the citizenry at large to overthrow it should it come to pass.
In 1822, the Kentucky Court of Appeals struck down an 1813 concealed carry statute as violation of the state constitutional protection of the right to keep and bear arms: “And can there be entertained a reasonable doubt but the provisions of that act import a restraint on the right of the citizen to bear arms? The court apprehends it not. The right existed at the adoption of the Constitution; it then had no limit short of the moral power of the citizens to exercise it, and in fact consisted of nothing else but the liberty of the citizen to bear arms.”
The Georgia Supreme Court reviewed a ban on the sale of pistols in Nunn v. State (1 Ga. 243,251 (1846). Its ruling stated, “the right of the whole people, old and young, men women and boys and not militia only, to keep and bear arms of every description, and not merely such as are used by the militia, shall not be infringed, curtailed, or broken in on, in the slightest degree; and all this for the important end to be obtained: the rearing up and qualifying of a well regulated militia, so vitally necessary for the security of a free state.”
Could it possibly be made any clearer to our current Senators what the Second Amendment really means?
National Guard and the Militia
The Senate report states, “the 'militia' itself referred to a concept of universally armed people, not to any specifically organized unit. When the framers referred to the equivalent of our National Guard, they uniformly referred to the 'select militia' and distinguished this from 'militia.' Indeed, the debates over the Constitution constantly referred to organized militia units as a threat to freedom comparable to that of a standing army, and stressed that such organized units did not constitute, and indeed were philosophically opposed to, the concept of a militia.
“That the National Guard is not the 'militia' referred to in the Second Amendment is even clearer today. Congress has organized the National Guard under its power to 'raise and support armies' and not its power to 'Provide for organizing, arming and disciplining the Militia.'
The modem National Guard was specifically intended to avoid status as the constitutional militia, a distinction recognized by 10 U.S.C. Sec. 311(a).”
Federal firearms laws
The report addresses some of the federal firearms laws that were then in effect. It begins with the 1934 National Firearms Act (NFA) which covers fully automatic weapons (machine guns), rifles and shotguns with a barrel or overall length less than certain minimums and silencers (suppressors).
As the report states, “since the Act was adopted under the revenue power, sale of these firearms was not made subject to a ban or permit system. Instead, each transfer was made subject to a $200 excise tax, which must be paid prior to transfer; the identification of the parties to the transfer indirectly accomplished a registration purpose.”
The Federal Firearms Act of 1938 “placed some limitations upon sale of ordinary firearms. Persons engaged in the business of selling those firearms in interstate commerce were required to obtain a Federal Firearms License (FFL), at an annual cost of $1, and to maintain records of the name and address of persons to whom they sold firearms. Sales to persons convicted of violent felonies were prohibited.”
Again, an indirect registration purpose was accomplished while a Right began to be converted to a licensed “privilege,” under the guise of regulating interstate commerce.
Thirty years later, the Gun Control Act of 1968, “worked a major revision of federal law.” It “imposed limitations on imported firearms, expanded the requirement of dealer licensing to cover anyone 'engaged in the business of dealing' in firearms, whether in interstate or local commerce, and expanded the record keeping obligations for dealers. It also imposed a variety of direct limitations upon sales of handguns. No transfers were to be permitted between residents of different states (unless the recipient was an FFL holder), even where the transfer was by gift rather than sale.”
Persons convicted of any felony, except business related felonies (white collar crime); persons subject to a mental commitment order or finding of mental incompetence, drug users and other categories were ineligible to purchase from a FFL dealer.
Enforcement of the 1968 GCA was delegated to the Department of the Treasury, which in turn gave the responsibility to the Alcohol and Tobacco Tax Division of the Internal Revenue Service. The government's gun control business boomed with the new laws and by July, 1972, the Bureau of Alcohol, Tobacco and Firearms (BATF) became its own bureau of the Department of the Treasury. The general infringement of our firearms rights became administratively enshrined since that time.
The Senate report extensively exposes a number of BATF abuses and misconduct. Several Senate hearings were held in 1979 and 1980. The report states, “based upon these hearings, it is apparent that enforcement tactics made possible by current federal firearms laws are constitutionally, legally and practically reprehensible.”
The primary objective of the 68 GCA was “limiting the access of felons and high risk groups to firearms.” But two members of the Illinois judiciary testified, “they had been totally unable to persuade BATF to accept cases against felons who were in possession of firearms, including sawed-off shotguns.”
The Bureau's own figures showed that the percentage of its arrests of felons and persons selling to them dropped from 14 percent to 10 percent of their firearm cases. The BATF later stated that, “55 percent of its gun law prosecutions involve persons with no record of felony conviction and one-third involve citizens with no police contact at all.”
The Subcommittee on the Constitution received evidence that the “BATF has primarily devoted its firearms enforcement efforts to the apprehension, upon technical malum prohibitum charges, of individuals who lack all criminal intent and knowledge” and “evidence received...demonstrated that Bureau agents have tended to concentrate on collector's items rather than 'criminal street guns.'”
The report details routine BATF conduct, where gun collectors are enticed into making a few sales to undercover agents and then charged with engaging in the business without a license, which can result in a felony conviction for a crime which they had no knowledge or intent they were violating, preventing their future firearms ownership for life, while the BATF confiscates their entire collection even before they are convicted. “In several cases, the agents refused to return the collection even after acquittal by a jury.
“In several cases, the Bureau sought conviction for supposed technical violations based upon policies and interpretations of law which the Bureau had not published in the Federal Register as required by 5 U.S.C. Sec. 552. In these and similar areas, the Bureau has violated not only the dictates of common sense, but 5 U.S.C. Sec. 552, which was intended to prevent 'secret lawmaking' by administrative bodies.”
And this was 1982. Currently, being a FFL holder allows federal agents to search your home or business at any time, imposes immaculate records-keeping requirements and compliance with so many regulations a large, bound volume is required to list them all and which the violation of even one sentence contained therein could result in a felony conviction and the banishment of an FFL holder's Right to keep and bear arms for life.
Has the federal government forgotten what the Georgia Supreme Court said long ago, that the Right to keep and bear arms “shall not be infringed, curtailed, or broken in on, in the slightest degree?”
Infringement in the first instance, under the guise of revenue and interstate commerce, has led to the next instance of regulating local and private sales, which are now managed by an agency the U.S. Senate acknowledged as abusing its statutory authority.
Beyond commerce and revenue, the federal government has progressed by leaps and bounds in its continuing infringement of the Right to keep and bear arms. Mere accusations resulting in a state domestic protection order can ban ownership of firearms, under federal law; federal misdemeanor sentencing guidelines can include probation terms which prohibit firearms possession, even when the “crime” was only a non-violent regulatory violation.
Waiting periods, background checks, limitation of magazine capacity, import bans on certain firearms, prohibitions of various firearms configurations and outright bans of others litter the federal law books and regulations. While pretending to be for benevolent purposes they have but one malevolent design: The absolute infringement of the Right to keep and bear arms and, once that is accomplished, the destruction of all else that Americans hold dear.
From a moral, freedom-lover's perspective, the Senate report reveals an abominable history against the Rights of human beings. But we are often inclined to view and understand things according to our personal matrix of perception and preference. When we fail to perceive a subject from the perspective of another's matrix we can fail to understand them.
By what matrix do our current Senators perceive the subject? From an amoral “tyrannists” perspective, the report is an ancient road map showing the path to conquest and subjugation of the people, letting our Senate know they are right on course with their agenda. Remember, they have spent a lifetime questing for power, and its acquisition has not always been by moral means. If we try to understand them through their matrix, rather than our own, we can then reconcile the discrepancies between the contents of this report and current congressional conduct.
What is Congress up to today? The following bills are but a few of the current gun related legislation.
On the negative side
Gun Show Background Check Act of 2003 (H.R.260) To extend background checks to gun shows. Child Gun Safety and Gun Access Prevention Act of 2003 (H.R.76). SNIPER Act of 2003 (S.1983) So No Innocent Person Ever Repeats the Sniper Tragedy Act of 2003.' Homeland Security Gun Safety Act of 2003 (S.969). Crackdown on Deadbeat Dealers Act of 2003 (H.R.1540). 50 Caliber Sniper Rifle Reduction Act (H.R.4292) To ban the transfer of 50 caliber sniper weapons, and otherwise regulate the weapons in the same manner as machine guns.
Technological Resource to Assist Criminal Enforcement (TRACE) Act (H.R.776). Bullet Tracing Act To Reduce Gun Violence (H.R.24) To require ballistics testing of firearms manufactured in or imported into the United States, and to provide for the compilation, use, and availability of ballistics information for the purpose of curbing the use of firearms in crime.
Gun Show Loophole Closing Act of 2004 H.R.3832) (S.1807) To require “special firearms events operators” to notify “the Attorney General, in writing, of the date, time, duration, and location of the special firearms event, and the special firearms event vendors planning to participate;” at least 30 days beforehand, and “verify the identity of each special firearms event vendor participating in the special firearms event by examining a valid identification document (as defined in section 1028(d)(2)) of the vendor containing a photograph of the vendor” and “require each special firearms event vendor to sign a ledger with identifying information concerning the vendor; and notify the vendor of the obligations of the vendor under this chapter; notify each person who attends the special firearms event of the requirements of this chapter, in accordance with such regulations as the Attorney General shall prescribe. If any part of a firearm transaction takes place at a special firearms event, or on the curtilage of the event, it shall be unlawful for any person who is not licensed under this chapter to transfer a firearm to another person who is not licensed under this chapter, unless the firearm is transferred through a licensed importer, licensed manufacturer, licensed dealer, or a special firearms event licensee. A special firearms event licensee shall not transfer a firearm at a special firearms event.
Iris Scan Security Act of 2003 (HR 1171) To provide grants to law enforcement agencies to use iris scanning technology to conduct background checks on individuals who want to purchase guns.”
On the positive side
States' Rights and Second and Tenth Amendment Restoration Act of 2003 (H.R.276) States are the proper authority, rather than the Federal Government, to classify Domestic Violence offenses. Section 658 of Public Law 104-208, commonly referred to as the Lautenberg amendment, oversteps Federal authority, violating States' rights, because no nexus has been shown to exist between Domestic Violence and interstate commerce. The Lautenberg amendment does not deal with a subject delegated to Congress under article I, section 8 of the Constitution of the United States and is therefore unconstitutional under the tenth amendment to the Constitution, as interpreted by United States v. Lopez. The Lautenberg amendment oversteps Congress's power to regulate commerce as delineated by the Commerce Clause of the United States Constitution.
District of Columbia Personal Protection Act (S.1414) To restore second amendment rights in the District of Columbia.
Citizens' Self-Defense Act of 2003 (H.R.648) (H.R.2789) To protect the right to obtain firearms for security, and to use firearms in defense of self, family, or home, and to provide for the enforcement of such right.
Expressing the sense of Congress with respect to the Second Amendment. (H.CON.RES.179) Expressing the sense of Congress with respect to the Second Amendment: Whereas our forefathers developed a Bill of Rights to protect the rights of individuals; Whereas the right to bear arms is a cornerstone of our individual freedoms guaranteed by the U.S. Constitution; Whereas gun ownership is an integral part of our free society today; and Whereas in the ruling of the United States Court of Appeals for the Ninth Circuit reaffirmed the Circuit Court's prior ruling in Hickman v. Block, 81 F. 3rd 98 (Ninth Cir. 1996) that the Second Amendment does not confer an individual right to own or possess arms: Now, therefore, be it Resolved by the House of Representatives (the Senate concurring), That it is the sense of the Congress that the Second Amendment to the Constitution of the United States guarantees individuals the right to bear arms.
Second Amendment Protection Act of 2003 (H.R.153) To restore the second amendment rights of all Americans.
Firearms Heritage Protection Act of 2003 (H.R.357) To prohibit civil liability actions from being brought or continued against manufacturers, distributors, dealers, or importers of firearms or ammunition for damages resulting from the misuse of their products by others.
A new standing army
While your rights are diminishing, there are exceptions. The police are allowed to purchase and possess machine guns and silencers, exempting them from the 1934 NFA.
Your local supermarket carries magazines displaying the latest in tactical weapons technology for modem day “law enforcement.” This new “select militia,” or standing army is already on patrol and increasingly uses enforcement strategies aimed more at regulating your conduct than protecting you from genuine criminals.
Our founders were quite concerned about the establishment of a “select militia” stating that it “will, in fact, be a standing army.” Consider the fact that we have more policemen employed by New York City than we have troops currently deployed in Iraq.
How many “Special Weapons And Tactics” (SWAT) teams exist across America? Nearly every local jurisdiction has at least one. And this is just the standing army from our regular police forces.
We have entered the age of Homeland Security, of federal, state and local police and the battle cry of “terrorism, terrorism, terrorism!”
Simultaneously, Congress' full fledged assault on the Bill of Rights continues unabated, the Senate's 1982 report on the Right to Keep and Bear Arms be damned.