Making Sense of the Meaning and Intent of the Second Amendment: It Isn’t Hard, Folks!

2nd amendment - there are no rights if you can't defend them

by Diane Rufino, May 24, 2017

“No free man shall be debarred (denied) the use of arms.” –  as proposed by Thomas Jefferson for Virginia’s Bill of Rights, 1776

The Federal Farmer (anti-Federalist author) in 1788: “To preserve liberty, it is essential that the whole body of the people always possess arms and be taught how to use them.”

Patrick Henry to the Virginia Convention to Ratify the US Constitution, in June 1788: “The great object is that every man be armed.”

At the same time it ratified the US Constitution in 1788, the New Hampshire Ratifying Convention proposed this amendment for the Bill of Rights: “Congress shall never disarm any citizen, unless such as are or have been in actual rebellion.”

The Federal Gazette, dated June 18, 1789, described James Madison’s proposal for a Bill of Rights: “The people are confirmed in their right to keep and bear their private arms.”

“We have found no historical evidence that the Second Amendment applies only to members of a select militia while on active duty. All the evidence indicates that the amendment, like other parts of the Bill of Rights, applies to and protects individual Americans.”   —  The Court of Appeals for the 5th Circuit (2001)

INTRODUCTION –

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.”

For most of our nation’s history, the Supreme Court has essentially managed to avoid ruling on the meaning and intent of the Second Amendment and that worked out just fine. And that’s probably because for about 150 years, it apparently was universally understood that the amendment protected an individual right to arms rather than a right only when organized in a militia. It wasn’t until the 20th century that a legal debate began in earnest over the characterization of the right recognized in the Second Amendment.

Is the right to arms an individual right or a collective right?  Indeed, in the 20th century, federal courts have seemed confused on this question. Some embrace the historical model, which holds that the amendment recognizes the right of people, as individuals, to bear arms.  And others embrace the more radical model, the “collective rights” model, which holds that individuals have the right to arms but only when they are members of a militia.

The “collective rights” model was embraced in 1939 in a case called United States v. Miller.  The case arose after two men, Jack Miller and Frank Layton, were arrested for transporting a double-barrel 12-gauge shotgun across state lines and in interstate commerce. They were charged with violating the National Firearms Act (“NFA”).  Miller and Layton argued that the NFA violated their Second Amendment right to keep and bear arms and therefore it was unconstitutional as it applied to them. The federal district court agreed and dismissed the case. The government appealed and it went to the Supreme Court. The issue at the heart of the case was whether the Second Amendment protects an individual’s right to keep and bear arms. The Supreme Court concluded that it does not. It reasoned that because the possession of a sawed-off double barrel shotgun does not have a reasonable relationship to the functioning or efficiency of a well-regulated militia, the Second Amendment does not protect the possession of such an instrument.

Although the right to arms became an increasingly heated topic as the 20th century went on, the Supreme Court refused to hear cases to re-address the amendment.  And so, the Miller decision defined the position of the federal judiciary from 1939 for almost 70 years.  The Second Amendment did not recognize an individual’s right to have and bear arms for self-defense – only the defense of a State. But then in 2008 and then in 2010, the Supreme Court, with the late great Antonin Scalia on the bench, agreed to hear two cases, each addressing the same issue and each directly asking the Court to re-address the meaning and intent of the Second Amendment.  The 2008 case, District of Columbia v. Heller, addressed a federal gun control law, and the 2009 case, McDonald v. Chicago, addressed a state gun control law. [The first was a direct challenge to the Second Amendment and the second was a challenge under the incorporation clause of the Fourteenth Amendment].

In Heller, at issue was a gun ban in the District of Columbia (hence, it was a federal gun law) which regulated firearms in several ways: (1)  It made it illegal to carry an unregistered firearm; (2) It prohibited the registration of handguns; (3)  It required owners of lawfully-registered firearms to keep them unloaded and disassembled, even in the home, or bound by a trigger lock or other similar device unless the firearms were located in a place of business or being used for legal recreational activities.  Dick Anthony Heller was a D.C. special police officer who was authorized to carry a handgun while on duty. He applied for a one-year license for a handgun he wished to keep at home, but his application was denied, and so he brought suit to challenge the gun ban as violative of the Second Amendment.

The Supreme Court agreed with Officer Heller (5-4 majority, of course). It held that the Second Amendment protects an individual’s right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.  Therefore, the ban on registering handguns and the requirement to keep guns in the home disassembled or nonfunctional with a trigger lock mechanism was inconsistent with the intent of the Second Amendment. Justice Antonin Scalia delivered the opinion.  The Court held that the first clause of the Second Amendment that references a “militia” is a prefatory clause that does not limit the operative clause of the Amendment. Additionally, the term “militia” should not be confined to those serving in the military, because at the time the term referred to all able-bodied men who were capable of being called to such service. To read the Amendment as limiting the right to bear arms only to those in a governed military force would be to create exactly the type of state-sponsored force against which the Amendment was meant to protect people. Because the text of the Amendment should be read in the manner that gives greatest effect to the plain meaning it would have had at the time it was written, the operative clause should be read to “guarantee an individual right to possess and carry weapons in case of confrontation.” This reading is also in line with legal writing of the time and subsequent scholarship. Therefore, banning handguns, an entire class of arms that is commonly used for protection purposes, and prohibiting firearms from being kept functional in the home, the area traditionally in need of protection, violates the Second Amendment.

The piece of legislation addressed in the McDonald case was Chicago’s gun registration law, which: (1) Prohibited the registration of handguns, thus effecting a broad handgun ban; (2) Requires that guns be registered prior to their acquisition by Chicago residents; (3) Mandated that guns be re-registered annually, with another payment of the fee; and (4) Rendered any gun permanently non-registrable if its registration lapses. 76-year-old Chicago resident Otis McDonald, a retired maintenance engineer, had lived in the Morgan Park neighborhood since buying a house there in 1971. He complained about the decline of his neighborhood, describing it as being taken over by gangs and drug dealers. His home and garage had been broken into five times. An experienced hunter, McDonald legally owned shotguns, but believed them too uncontrollable in the event of a robbery, and so he wanted to purchase a handgun for personal home defense. Due to Chicago’s requirement that all firearms in the city be registered, yet refusing all handgun registrations after 1982 when a city-wide handgun ban was passed, he was unable to legally own a handgun. So, he and some of his neighbors challenged the Chicago gun registration law as violative of the Second Amendment, as applied to the States through the Fourteenth Amendment. He didn’t believe that the Second Amendment was meant to leave him as a sitting duck – a potential victim – in his crime-ridden neighborhood.

The Supreme Court held that the Fourteenth Amendment makes the Second Amendment’ right to keep and bear arms for the purpose of self-defense applicable to the states. With Justice Samuel A. Alito writing for the majority, the Court reasoned that rights that are “fundamental to the Nation’s scheme of ordered liberty” or that are “deeply rooted in this Nation’s history and tradition” are appropriately applied to the states through the Fourteenth Amendment. The Court recognized in Heller that the right to self-defense was one such “fundamental” and “deeply rooted” right, and so, the Second Amendment’s protections and prohibitions apply to the States.

As you read the body of this article, consider what liberal justices Stephen G. Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor argued in their dissent. They wrote that there is nothing in the Second Amendment’s “text, history, or underlying rationale” that characterizes it as a “fundamental right” warranting incorporation through the Fourteenth Amendment.  Keep that in mind.

Heller and McDonald were decided after a deep look into the historical roots of the Second Amendment, something that the Court should have done in the Miller case. The current understanding is that the Second Amendment recognizes and protects an individual’s right to arms for self-defense and equally recognizes the right to have and bear arms for the purpose of a state militia.

The opinion makes sense.  According to the Declaration of Independence, and natural law, we have the right to life and liberty. These rights are inherent with our humanity. They are inalienable. We never surrender them. Therefore, by extension (by corollary), we must have the right to defend them. In other words, the right to life, and liberty (and Property too) also implies the right to defend them. Otherwise, the rights are meaningless; there are merely parchment pronunciations.

The desire to live and survive is innate; we reflexively act to protect our lives and to thrive. And when we can’t, we feel violated. Just ask anyone who has been the victim of a violent crime, of a robbery, an assault, a break-in.  Ask someone who has the experience of a stranger breaking into their house in the middle of the night. I had that experience. And I have a gun today because I never want to feel helpless and vulnerable and the victim of predation again.

From a simple reading of the Bill of Rights, one notices that the First Amendment and the other amendments as well, address individual rights. If the Bill of Rights identifies individual rights – as did the Magna Carta and the English Bill of Rights – shouldn’t one sense pressure to view the Second Amendment similarly?

Historically, the “individual right” view is the best proven one, and so the Supreme Court rightly decided the Heller and McDonald cases.  But what is that history that so grounds our Second Amendment and so secures its meaning as an individual right?

The DVD “In Search of the Second Amendment” explains this history very clearly.

THE HISTORY of the SECOND AMENDMENT

[This section is lifted, in part, from the DVD “In Search of the Second Amendment (A Documentary),” produced and directed by David T. Hardy (2006)]

The 1930’s through the 1970’s was a time period when Americans were embracing their gun rights, but lawyers weren’t paying much attention to the Second Amendment – one way or another (that is, on either side of its interpretation).  There wasn’t much thought given to it. But as the years went on, there was growing evidence for the “individual right” view. Law reviews were publishing articles on the topic and books on the Constitution were taking notice of this meaning. Momentum was slowly building for a show-down in the Supreme Court to address this building consensus.

One of the leading Constitutional Law treatises of the later 20th century, American Constitutional Law, was written by Laurence Tribe, professor of Constitutional Law at Harvard Law School. His first edition was written in 1978. Attorney Leonard Levy wrote a subsequent book, Essays on the Making of the Constitution, in which he attacked Tribe’s textbook for failing to acknowledge the growing the evidence of the “individual right” view of the right to have a bear arms. Tribe immediately published a second edition accepting this evidence.

Why this growing trend?  And what does it mean for the Miller decision?  Did the Court at the time not have the evidence?  Before coming to the conclusion that the Second Amendment conferred only a collective right (although it appears they only alluded to this viewpoint without coming right out with a bright line rule of construction), didn’t they bother to go back and research the amendment’s history?

What got the ball rolling towards the “individual right” point of view?  One article appears to be responsible. The recent boom in Second Amendment legal scholarship that has led to most constitutional scholars to accept the view that the amendment protects an individual’s right to have and bear arms began with an article by Don Kates, published in the Michigan Law Review. That article was titled “Handgun Prohibition and the Original Meaning of the Second Amendment.’ [http://www.constitution.org/2ll/2ndschol/57mich.pdf].

Top legal scholars, many of which are liberal, such as Sandy Levinson (of the University of Texas, writing in the Yale Law Journal), Randy Barnett (Boston University School of Law), Bill Van Alstyne (Duke University), and Eugene (Professor at the UCLA School of Law) have made it clear that their research has led them to conclude that the Second Amendment protects an individual right to have arms.

The history behind the Second Amendment goes back well before the colonies were even settled. It goes back to the very history of the fore-fathers and founders of our country. It goes back to the history of England, the country that gave us so much of our common law, gave us our Bill of Rights, and gave us much of the foundation upon which we built our Declaration, our Constitution, and our system of government.

In medieval England, there was no royal army. There wasn’t enough money or control to have such a formal army. Instead, the King would have to count on his subjects to fight for him – to fight for the kingdom. And so, by law, the King established a citizen militia.  By law – the Militia laws – every male subject, beginning at a certain age, was required to own guns, have ammunition, be trained in their use, and show up for regular training sessions. Citizens could be called up at any time by the King to form the militia and so they had to always be in a state of readiness.  Henry VIII lowered the age of the males required to be trained to use guns. Under his rule, fathers were required to train their sons from age 7 and older in the use of firearms. “Bring them up in shooting!”

In 1688, a medieval “duty” to have and bear arms became an “indubitable right.”  How did this happen?   Dr. Joyce Malcolm, Patrick Henry Professor of Constitutional Law and the Second Amendment at George Mason University School of Law and fellow of the Royal Historical Society, is an expert on this topic. She has been called “the leading historian on the history of English gun rights and English gun control.” Malcolm explains that gun ownership transformed into a “right” during the tumultuous 17th century in England, and for understandable reasons. The transformation arose out of a conflict between King Charles I and Parliament. Eventually, in 1642, civil war broke out and members of Parliament, led by Oliver Cromwell, brought charges against Charles. He was captured, tried for treason, and beheaded. His sons, the future King Charles II and King James II had fled to France at the time.

After Cromwell died and his son took over, rather than stability in England, there was mass chaos. The people, out of sheer desperation, asked Charles II to come back to England, assert his right to the throne, and rule, which he did.  But what did Charles come home to?  He returned to a country that turned on his father; a country that beheaded him. He also returned to a country that was very well-armed. Almost immediately, he sought to disarm the subjects and control the bearing of arms. He instituted serious gun control measures, both on individuals and on manufacturers. Gun manufacturers had to report to the King how many guns they manufactured each week and who purchased them. There were controls on the importing of guns, licenses were required for subjects who needed to move weapons around the countryside, and subjects had to report if they were traveling with a firearm. In the year 1660, King Charles II issued a series of orders to disarm those citizens that he deemed were – or would be – political opponents. One particular act that Parliament passed, in 1662, was especially repugnant. It was the Militia Act of 1662 and it gave militia officers the power to disarm anyone they believed was likely to be an opponent of the Crown.  And at first, the Act was actively enforced.  In 1671, Parliament passed the Game Act, which proved to be the greatest control over ownership of firearms that England ever had. The Game Act listed a whole host of weapons that were prohibited for hunting, and at the head of that list was guns !!

Charles II died and having produced no heirs, he was succeeded by his brother James. King James II would use the Game Act to try to disarm all those subjects who he deemed were not well-enough off. In other words, he tried to limit gun ownership to only those of a certain class of subjects. He sent out mass orders to disarm the citizenry.  According to the record, Dr. Malcolm explains, the orders were apparently not carried out.  But the actions of the King to disarm his subjects certainly arose concern and fear among the people of England.

And so, finally in 1688, the English people had had enough. They, together with a union of Parliamentarians, invited William and Mary, of Orange to take over the throne and depose King James II. Mary was the daughter of the king. The people promised they would oust James and offer no resistance to William and Mary if they agreed to sign a Bill of Rights acknowledging the rights of the people and promised to be held to that document. William and Mary agreed. They sailed from Orange and were met with the support of the citizenry, in what would be known as the “Bloodless Revolution” (or Glorious Revolution). James was forced to flee.  A new Parliament was formed (one not loyal to James, who was still alive) and this Parliament decided that a Bill of Rights was necessary to re-affirm all the rights that had been imperiled by James.  In order to tie the new King and Queen to an obligation to abide by these rights, the same statue that elevated William and Mary to the throne also contained those rights – The Charter of Rights – The Charter of Ancient and Indubitable Rights.”  In fact, this Bill of Rights of 1689 was referred to as “The new Magna Carta.”  The statue created a contractual obligation, one that tied the right of the King and Queen to rule to an obligation to respect the rights contained in the Charter.

One of those rights was the right of British subjects (“who are Protestants”) to have arms for their defense (self-defense) “suitable to their position and allowed by law.”

Arms seizure weighed heavily during the deliberations in Parliament as it drafted the Bill of Rights of 1689. So incensed that the people, in mass, had been targeted for arms confiscation under the Militia Act (and even some members of Parliament had been targeted), that the people and Parliament felt that the “duty” to have and bear arms was actually a “right.” The ability to arm oneself for self-defense was considered a right.

Indeed, by 1688, and enshrined in the Bill of Rights of 1689, the duty to be armed became a right. One of the rights of Englishmen became the right to have arms for self-defense.

Between 1603 and 1776, the rights of Englishmen became the rights of Americans.

When the first three ships arrived in the New World, in what would become the commonwealth of Virginia, the English settlers encountered hostile French and Dutch settlers as well as hostile Indians. Because of this hostile environment, the arms laws were even stricter than the English ones. English colonists were required to have arms on them at all times and they were required to be trained in their use. “Every male inhabitant shall carry a firearm wherever he goes.”  As the colonies were settled, one by one, they established their state militias. They drew from their knowledge of the militia system in England to develop their own military forces. The resulting colonial militia laws required every able-bodied male citizen to participate and to provide his own arms. For example, in the colony of Virginia, in 1623, the Virginia General Assembly commanded, “that men go not to work in the ground without their arms; That no man go or send abroad without a sufficient partie well-armed.” In 1661, its Governor, William Berkeley stated, “All our freemen are bound to be trained every month in their particular counties.”  Virginia followed the British county lieutenant system; each county had a lieutenant, appointed as the county’s chief militia officer.

Yes, it was a “duty” to have and bear arms, in order to serve in the militia and help defend the colony, but apart from this duty, the colonists knew, as loyal British subjects (which they were and which they considered themselves), they also had the right to own them and to bear them.  For confirmation, they only needed to consult the second most popular book of the day (the first being the Bible), Blackstone’s treatise on the English common law, “Commentaries on the Laws of England” (1765).

In Blackstone’s “Commentaries on the Laws of England,” he addressed the right to arms:

“The fifth and last auxiliary right of the subject that I shall at the moment mention, is that of having arms for their defense – suitable to their condition and degree, and as such as are allowed by law. It is indeed a public allowance, of the natural right of resistance and self-preservation, when the sanctions of society and law are found insufficient to restrain violence of oppression.”

Blackstone says clearly that the right is not only for defense and for protection, but it is also to resist tyranny. The main purpose of the right to bear arms is to resist tyranny – in order that the people in the community, together and with their firearms, could overthrow a dictatorship in the last resort, should none of the other checks and balances work.

By the mid 1760’s, tensions were growing increasingly high particularly in the colonies, and in Boston in particular. It wasn’t long before the redcoats arrived, to live among the people of Boston and to make sure that they stayed “in line.” With the Redcoats came acts of criminality – rapes, robberies, murder.  The Boston Gazette published articles warning the colonists that they would soon be disarmed and should they “act out,” they would be taken to England and tried for treason. The colonists began to arm themselves – first to defend themselves against the criminal tendencies of the soldiers and also because it seemed likely that the tensions would escalate into conflict.  They cited the English Bill of Rights, the Militia Acts of the colonies, and even Blackstone’s “Commentaries” for their right to arm themselves.  “It is beyond sophistry to prove (meaning, it is clearly fallacious) that British subjects, to whom the privilege of necessary arms is expressly recognized by the [English] Bill of Rights, and who live in a province were the law requires them to be equipped with arms, are guilty of illegal acts in calling upon one another to be provided with them – as the law directs!”

Citing Blackstone, the colonists understood the reason they were vested with the right to bear arms: “It is a natural right, which the people have reserved to themselves, confirmed by the [English] Bill of Rights, to keep arms for their own defense; and as a Blackstone observer, it is to be made use of when the sanctions of society and law are found insufficient to restrain the violence of oppression.”

Tensions soon escalated and a series of events followed.  Under the Intolerable Acts, the colonial legislature in Boston was abolished and King George III sent General Thomas Gage, a proven military commander at the time, there to serve as the Royal Governor. British spies tipped off General Gage that the colonists were stockpiling ammunition and artillery at nearby Concord. On the night of April 18, 1775, Gage sent a column of soldiers to Concord to destroy the supplies. Their trip led them through Lexington, where they encountered a small group of colonial militiamen. A shot went off (no one knows how it happened), but the response was immediate. Shots rang out and armed conflict between England and Massachusetts had begun. The revolution had begun. British forces drew first blood.

Despite the skirmish, the troops continued to Concord where they found the ammunition and where they also found several thousand angry townsfolk. The troops proceeded to burn the stockpile but from the vantage point of the townsfolk, it looked like they were attempting to burn down the town. And so, the townsfolk opened fire on the troops, forcing them to retreat. As they were retreating the 15 miles or so back to Boston, more and more members of the militia turned out to fire upon them. The British soldiers suffered over 300 casualties. Not only did they draw first blood, but they were defeated.

The fighting, however, was not to be contained in Massachusetts. In Williamsburg, Virginia, the colonists built an armory to store their gunpowder. Late during the night of April 20, 1775, royal governor Dunmore ordered British sailors to raid the armory and to take the gunpowder back aboard their ships. Dunmore allowed this even as statesmen such as Patrick Henry and William Henry Lee and other Virginians were already pushing to revive the state militia – to put into execution the militia law that was passed in the year 1738 – and to put them in the posture of defense (that is, to prepare them to defend the State against the British).

Just a month prior to that event, there was a general alarm that was spreading among the colonies – fueled, no doubt, by men like Patrick Henry and Thomas Paine – that the British were removing gunpowder from the public stock in order to render the colonists unable to resist the Crown. Clearly, as was done in Boston, England was intent on disarming them – just as King Charles II had done to his subjects approximately 100 years ago in the mother country. The King (George III) was not depriving them of their right of representation in Parliament this time (no taxation without representation); now he was stripping them of their right to bear arms for defense.

Only a handful of statesmen recognized what was happening and what its significance was. Patrick Henry was one. It was this general alarm, this general fear that England was coming to disarm the colonists, that prompted him, on the night of March 23 at St. John’s Church to propose three resolutions to raise, equip and prepare the militia for conflict.

His resolutions read simply:

Resolved, that a well-regulated militia composed of gentlemen and yeomen is the natural strength and only security of a free government; that such a militia in this colony would forever render it unnecessary for the mother country to keep among us, for the purpose of our defense, any standing army of mercenary forces, always subversive of the quiet, and dangerous to the liberties of the people, and would obviate the pretext of taxing us for their support.

That the establishment of such a militia is at this time peculiarly necessary, by the state of our laws for the protection and defence of the country some of which have already expired, and others will shortly do so; and that the known remissness of government in calling us together in a legislative capacity renders it too insecure in this time of danger and distress, to rely that opportunity will be given of renewing them in General Assembly or making any provision to secure our inestimable rights and liberties from those farther violations with which they are threatened.

Resolved therefore, that this colony be immediately put into a posture of defence: and that Patrick Henry, Richard Henry Lee, Robert Carter Nicholas, Benjamin Harrison, Lemuel Riddick, George Washington, Adam Stephen, Andrew Lewis, William Christian, Edmund Pendleton, Thomas Jefferson and Isaac Zane, Esquires, be a committee to prepare a plan for the embodying arming and disciplining such a number of men as may be sufficient for that purpose.

Perhaps the most rousing speech delivered in colonial America was by Patrick Henry and it was in support of these resolutions:  [As you read the speech, consider the circumstances to which he is speaking, and keeping in mind that men like Henry, Thomas Jefferson, Lee, Washington were keenly aware of the history of the people England, the continued struggle to assert their rights, to seek assurances, to have them violated, and only to have to try to re-assert them again, and again…..]

“The question before the House is one of awful moment to this country. For my own part, I consider it as nothing less than a question of freedom or slavery; and in proportion to the magnitude of the subject ought to be the freedom of the debate. It is only in this way that we can hope to arrive at truth, and fulfil the great responsibility which we hold to God and our country. Should I keep back my opinions at such a time, through fear of giving offence, I should consider myself as guilty of treason towards my country, and of an act of disloyalty toward the majesty of heaven, which I revere above all earthly kings.

Mr. President, it is natural to man to indulge in the illusions of hope. We are apt to shut our eyes against a painful truth, and listen to the song of that siren till she transforms us into beasts. Is this the part of wise men, engaged in a great and arduous struggle for liberty? Are we disposed to be of the number of those who, having eyes, see not, and, having ears, hear not, the things which so nearly concern their temporal salvation? For my part, whatever anguish of spirit it may cost, I am willing to know the whole truth; to know the worst, and to provide for it.

I have but one lamp by which my feet are guided; and that is the lamp of experience. I know of no way of judging of the future but by the past. And judging by the past, I wish to know what there has been in the conduct of the British ministry for the last ten years, to justify those hopes with which gentlemen have been pleased to solace themselves, and the House? Is it that insidious smile with which our petition has been lately received? Trust it not, sir; it will prove a snare to your feet. Suffer not yourselves to be betrayed with a kiss. Ask yourselves how this gracious reception of our petition comports with these war-like preparations which cover our waters and darken our land. Are fleets and armies necessary to a work of love and reconciliation? Have we shown ourselves so unwilling to be reconciled, that force must be called in to win back our love? Let us not deceive ourselves, sir. These are the implements of war and subjugation; the last arguments to which kings resort. I ask, gentlemen, sir, what means this martial array, if its purpose be not to force us to submission? Can gentlemen assign any other possible motive for it? Has Great Britain any enemy, in this quarter of the world, to call for all this accumulation of navies and armies? No, sir, she has none. They are meant for us; they can be meant for no other. They are sent over to bind and rivet upon us those chains which the British ministry have been so long forging. And what have we to oppose to them? Shall we try argument? Sir, we have been trying that for the last ten years. Have we anything new to offer upon the subject? Nothing. We have held the subject up in every light of which it is capable; but it has been all in vain. Shall we resort to entreaty and humble supplication? What terms shall we find which have not been already exhausted? Let us not, I beseech you, sir, deceive ourselves. Sir, we have done everything that could be done, to avert the storm which is now coming on. We have petitioned; we have remonstrated; we have supplicated; we have prostrated ourselves before the throne, and have implored its interposition to arrest the tyrannical hands of the ministry and Parliament. Our petitions have been slighted; our remonstrances have produced additional violence and insult; our supplications have been disregarded; and we have been spurned, with contempt, from the foot of the throne. In vain, after these things, may we indulge the fond hope of peace and reconciliation. There is no longer any room for hope. If we wish to be free² if we mean to preserve inviolate those inestimable privileges for which we have been so long contending²if we mean not basely to abandon the noble struggle in which we have been so long engaged, and which we have pledged ourselves never to abandon until the glorious object of our contest shall be obtained, we must fight! I repeat it, sir, we must fight! An appeal to arms and to the God of Hosts is all that is left us!

They tell us, sir, that we are weak; unable to cope with so formidable an adversary. But when shall we be stronger? Will it be the next week, or the next year? Will it be when we are totally disarmed, and when a British guard shall be stationed in every house? Shall we gather strength by irresolution and inaction? Shall we acquire the means of effectual resistance, by lying supinely on our backs, and hugging the delusive phantom of hope, until our enemies shall have bound us hand and foot? Sir, we are not weak if we make a proper use of those means which the God of nature hath placed in our power. Three millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us. Besides, sir, we shall not fight our battles alone. There is a just God who presides over the destinies of nations; and who will raise up friends to fight our battles for us. The battle, sir, is not to the strong alone; it is to the vigilant, the active, the brave. Besides, sir, we have no election. If we were base enough to desire it, it is now too late to retire from the contest. There is no retreat but in submission and slavery! Our chains are forged! Their clanking may be heard on the plains of Boston! The war is inevitable and let it come! I repeat it, sir, let it come.

Gentlemen may cry, Peace, Peace but there is no peace. The war is actually begun! The next gale that sweeps from the north will bring to our ears the clash of resounding arms! Our brethren are already in the field! Why stand we here idle? What is it that gentlemen wish? What would they have? Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!”

With the raid on the armory at Williamsburg, thus confirming Patrick Henry’s worst fears, the most powerful colony in the South (Virginia) was driven into an alliance with the most powerful colony in the North (Massachusetts).  The Boston Revolution soon became an American Revolution.

Thus, the American revolution started over our RIGHT to keep and bear arms. Tensions between the colonies and Great Britain may have started over the right not to be taxed without representation in Parliament (the body from which such taxing measures arose), but the actual revolution itself erupted over the actions of the Crown to disarm the people.

In 1775, the colonies called up the First Continental Congress to seek a peaceful resolution of the growing tensions. That Congress sent a series of petitions to the King to implore him to intercede on their behalf and recognize that their rights were being violated. He laughed at the petitions and likened the colonist to petulant little children who liked to throw fits. [Patrick Henry referenced this effort in his fiery speech at St. John’s: “We have petitioned; we have remonstrated; we have supplicated; we have prostrated ourselves before the throne, and have implored its interposition to arrest the tyrannical hands of the ministry and Parliament. Our petitions have been slighted; our remonstrances have produced additional violence and insult; our supplications have been disregarded; and we have been spurned, with contempt, from the foot of the throne.”]  In 1776, the colonies called up the Second Continental Congress to manage the war effort against the British. General George Washington was put over the Continental Army and on July 4, 1776, the Congress signed the Declaration of Independence, declaring the colonies to be independent from Great Britain and articulating to a “candid world” the list of grievances against Great Britain which would support and justify its decision to separate.

Once the colonies proclaimed their independence, the strongest sign they could send to demonstrate that independence was to assume statehood and adopt state constitutions (the signs of sovereignty).  And so, each colony organized itself as a state and drafted and adopted a constitution. Most also adopted a Bill of Rights, in one form or another.

Different states provided different models for the right to bear arms. In 1776, George Mason went to work on the Virginia Declaration of Rights. He introduced the enumerated rights with a statement of nature’s law and a statement of the relationship of individuals and government, in general.  He wrote:

THAT all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them.

That government is, or ought to be, instituted for the common benefit, protection, and security, of the people, nation, or community; of all the various modes and forms of government that is best, which is capable of producing the greatest degree of happiness and safety, and is most effectually secured against the danger of mal-administration; and that whenever any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, unalienable, and indefeasible right, to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal.

Then he addressed the right to arms:

That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided, as dangerous to liberty….

The Virginia Declaration of Rights was adopted June 12, 1776.

Thomas Jefferson submitted a draft of a Bill of Rights to be taken up at the upcoming convention (to draft a constitution for the first government of the “united” states, which as we know, was the Articles of Confederation). He wrote: “No free man shall be debarred the use of arms.”

The Pennsylvania Bill of Rights, adopted in September 1776, recognized a right to bear arms for both self-defense and in defense of the State.

  1. That all men are born equally free, and independent; and have certain, natural, inherent, and inalienable rights; amongst which are; the enjoying and defending of life and liberty; acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety.

XIII. That the people have a right to bear arms for the defense of themselves and the state.

In March 1780, Massachusetts adopted its Constitution and Bill of Rights, written by John Adams. It acknowledged a right to keep and bear arms, but added that it was for “the common good.”  The MA Bill of Rights read, in part:

The end of the institution, maintenance and administration of government, is to secure the existence of the body-politic; to protect it; and to furnish the individuals who compose it, with the power of enjoying, in safety and tranquility, their natural rights, and the blessings of life: And whenever these great objects are not obtained, the people have a right to alter the government, and to take measures necessary for their safety, prosperity and happiness.

The body-politic is formed by a voluntary association of individuals: It is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good.

Part the First. A Declaration of the Rights of the Inhabitants of the Commonwealth of Massachusetts.

Art. I.  All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.

XVII.  The people have a right to keep and to bear arms for the common defense.

Looking at these three Constitutions and Bills of Right, we can see that there were at least three (3) colonial models to address the right to arms.

Again, to compare and contrast them concisely, addressing them in the order they were adopted:

(1)  The Virginia model emphasizes the militia.  “A well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state…”

(2)  The Pennsylvania model doesn’t mention militia; it emphases self-defense and defense of the State.  “The people have a right to bear arms for the defense of themselves and the State.”

(3)  The Massachusetts model took the Pennsylvania approach, but added a limitation in the form of the clause “for the common defense, and added the people also have a right to “keep” arms.  “The people have a right to keep and bear arms for the common defense.”

These models would become important when our new nation would look to draft a national Bill of Rights.

And that time came in 1787, when after certain leading state leaders – namely, James Madison and Alexander Hamilton – found the Articles of Confederation unworkable for the growing union and took the initiative to call up a new constitutional convention. The Convention was held in Philadelphia from May to September 1787 and rather than heed the constitutional call of the Convention to “amend” the Articles of Confederation, a brand new plan of government was pursued and a brand new Constitution was drafted. Although the delegates from 12 states labored through the hot summer months of that year, engaged in countless debates, and pursued and negotiated through many contentious issues, in the end the final draft, the US Constitution, was not acceptable to many of the delegates. Seven delegates to the Convention walked out and refused to sign it on the last day – September 20, including Virginia’s George Mason. These delegates either complained that it conferred too much power to the federal government (mainly, an unlimited power to tax and spent, and to raise an army) or that it lacked a Bill of Rights, or both. Many of those who did not sign it were anti-Federalists, those who feared a weakening of the States at the hands of the federal government.

Nevertheless, once the Constitution was signed, it went to the States, which, acting in their own conventions, would take up the issue of ratification. If they ratified the Constitution, they would become part of the Union of States and if they didn’t, they would not.  Delaware ratified first, by a unanimous vote. Then came Pennsylvania, New Jersey (unanimous vote), Georgia (unanimous vote), and Connecticut (overwhelmingly). In January 1788, Massachusetts called its convention. Samuel Adams, who, although he did not attend the Philadelphia Convention, attended the ratifying convention. Assessing the Constitution, he addressed the Convention:

“And that the said Constitution be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience, or to prevent the people of the United States, who are peaceful citizens, from keeping their own arms, or to raise standing armies, unless necessary for the defense of the United States or of one or more of them, or to prevent the people from petitioning, in a peaceable and orderly manner, the federal legislature, for a redress of grievances, or to subject the people to unreasonable searches and seizures of their persons, papers, or possessions.”

Samuel Adams is the strongest unsung hero of the Second Amendment. His writings on the right to have and bear arms goes back many years, even before his days in the Sons of Liberty.

Next, Maryland ratified the Constitution (overwhelmingly), then South Carolina, and finally New Hampshire (narrowly).  When New Hampshire ratified in June 1788, it became the ninth state to do so.  According to Article VII of the Constitution, the Constitution would go into effect when 9 states ratified. And so, the new Union was born.

But this new Union was still terribly fractured.  Virginia, New York, North Carolina, and Rhode Island still hadn’t decided. Actually, North Carolina met in Convention on August 2, 1788 but quickly rejected the Constitution (193-75). It agreed to meet again; it was waiting to see what the other States did regarding a Bill of Rights.

When New Hampshire ratified the Constitution on June 21, 1788, the Virginia Convention was actually still going on. It was contentious. Virginia, New York, and North Carolina were not expected to ratify, and the issue was over a Bill of Rights, which James Madison had argued in Philadelphia was not necessary. George Mason and Edmund Pendleton, two of the delegates from Virginia at the Philadelphia Convention who would not sign the Constitution, were now delegates at the Virginia Ratifying Convention and were committed to preventing the document from being ratified. These men, and many others, were already calling for another Constitutional Convention – particularly George Mason, and he had the potential power to move the plan forward. Mason and Pendleton were joined in sentiment at the Convention by Patrick Henry, who was highly skeptical of the Constitution and was confident it would lead to the consolidation of the states under the federal government.

At issue at the Virginia Ratifying Convention was essentially the concerns of the anti-Federalists, which was that the Constitution lacked a Bill of Rights (and that the government tended to be overly-ambitious and powerful).  The Virginia view, in general, was that a Bill of Rights is the very least that a government owes to its people. Mason argued for a Bill of Rights, and of course, any Bill of Rights worth its salt would have to include a right to bear arms. Patrick Henry told the Convention: “The great object is that every man be armed!”

In the end, a compromise was reached.  James Madison promised that if the Virginia delegation would ratify the Constitution in the Convention he would recommend to the first US Congress that a Bill of Rights be added, as a series of amendments. Madison was known to be a trustworthy man and so, the Constitution was narrowly ratified on June 25 (89-79). However, the Virginia delegation did not merely ratify; in anticipation of a national Bill of Rights, it also proposed and drafted a series of amendments for consideration.

“Resolved, that, previous to the ratification of the new Constitution of government recommended by the late federal Convention, a declaration of rights, asserting, and securing from encroachment, the great principles of civil and religious liberty, and the unalienable rights of the people, together with amendments to the most exceptionable parts of the said Constitution of government, ought to be referred by this Convention to the other states in the American confederacy for their consideration”

When the Virginia delegation went back to write the amendments they would recommend, they looked to the Massachusetts and the Pennsylvania models, in addition to their own model.  The language that they came up with is as follows: “That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state.”

The right to bear arms for defense of oneself and the State comes from the Pennsylvania model. The right to keep and bear arms comes from the Massachusetts model.  By removing express limitations (such as “for the common good” or other qualifiers that might be later construed to limit the right (“for defense of themselves and the State”), the first part of the proposed amendment construes the right to arms in its broadest terms. The second part of the proposed amendment comes from the Virginia model and addresses the militia. The Virginia delegation already believed it was expressed in its broadest terms.

So, the Second Amendment is actually two separate thoughts. The intentional, conscious effort was to express the right to arms in the broadest terms possible, to be understood in its broadest sense.

The New York Convention followed. It wrapped up on July 26, one month after the Virginia Convention. It was another contentious convention. As in Virginia, it was a battle between anti-Federalists and Federalists.  On the anti-Federalist side, the words of the Federal Farmer (possibly Richard Henry Lee) were invoked: “To preserve liberty, it is essential that the whole body of the people always possess arms and be taught how to use them.”  Daniel Webster, for the Federalists, answered: “Before a standing army can rule, the people must be disarmed, as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword because the whole body of the people are armed and constitute a force superior to any band of regular troops that can be raised in the United States.”  [to paraphrase: Because of the fact that the people are armed and therefore superior to any troops raised by the United States, they can prevent the execution of any law they perceive not to be just and constitutional].

The debates in New York led to the most famous work on the meaning and intent of the Constitution – the Federalist Papers.  In fact, Madison addresses the militia (and a standing army) in Federalist No. 46.  He wrote: “The people will never have to worry about a standing army because of the state militias.”

The New York Convention very narrowly ratified the Constitution (30-27). But as Virginia did, it called for a Bill of Rights and provided several for consideration.  North Carolina went on to ratify, but only because a Bill of Rights has actually been adopted!  And then Rhode Island ratified after that.

The Constitution was adopted on June 12, 1788 when the ninth state, New Hampshire ratified it. Fall 1788 saw the first national elections and as expected, James Madison was elected to the House of Representatives. In the months after the election and before taking his seat in Congress, which was in New York City at the time), Madison sat at his home in Montpelier and drafted a Bill of Rights. He drew from the proposed amendments that were submitted by the states.  He planned to bring them with him to the first session of Congress and present them, thus making good on his promise. He drafted twelve amendments.

On June 8, 1789, Madison stood up in the House of Representatives and proposed what would become the federal Bill of Rights. His proposed Second Amendment 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 first Congress amended Madison’s proposal; it removed the language concerning the conscientious-objector.  Then a committee was formed – a drafting committee – consisting of Madison himself and Roger Sherman, an anti-Federalist, to provide the final draft. The final draft of the Second Amendment was a pared-down version which read: “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.”

In the debates in the Senate on the proposed Bill of Rights, a motion was made to insert into the Second Amendment the words “for the common defense” next to the words “bear arms.”  It was rejected !!

On September 25, 1789, Congress approved the amendments (all 12 of them) and then they were sent to the states.

James Madison’s friend, Tench Coxe, of Philadelphia, provided the most comprehensive analysis of the Second Amendment in a publication under the pen name “The Pennsylvanian.” It was printed in all the states.  He wrote: “As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which might be occasionally called to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the next article [the Second Amendment] in their right to keep and bear their private arms.”

The Bill of Rights was ratified on December 15, 1791.

All the leading commentators of the day saw the right to bear arms as an individual right, including  US Supreme Court Justice Joseph Story (1811-1845), who was the leading constitutional expert and commentator during the early-mid 20th century, Michigan Supreme Court Justice Thomas Cooley (1864-1885), the leading constitutional commentator at the end of the 19th century, and Sir William Blackstone, the leading English commentator who was very influential on our founders and framers.

St. George Tucker, who first gained fame as a Revolutionary War hero from Virginia, became famous again for writing a very famous treatise. In 1803, he wrote a 5-volume set, being characterized as the American version of Blackstone’s “Commentaries.”  It was titled: Blackstone’s Commentaries, with Notes of Reference to the Constitution & Laws of the Federal Government of the United States & of the Commonwealth of Virginia.  Tucker was seen as the best source and authority on the original intent and early interpretation of the US Constitution until about 1825, and his work has been cited by the US Supreme Court over forty times. For those looking to understand the meaning and intent of the Constitution at the time it was adopted and as it served our first sessions of government, it would be interesting to read Tucker’s volumes.

Tucker wrote about Blackstone’s exposition on the right to arms as it existed in the English law and explained how it applied to the United States. Tucker wrote: “’The right of the people to keep and bear arms shall not be infringed.’ This amendment is without any qualification as to their condition or degree, as in the case of the British government.”

He went on to elaborate even further:  Explaining the scope of the amendment, he wrote: “This [the Second Amendment] may be considered the true palladium of liberty…  The right of the self-defense is the first law of nature; in most governments, it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, then liberty, if not already annihilated, is on the brink of destruction.”

In 1825, Tucker’s treatise was replaced by the text written by William Rawle – A View of the Constitution of the United States of America. Regarding the Second Amendment, Rawle wrote in his book: “No clause in the Constitution could by any rule of construction be conceived to give to Congress a power to disarm the people..”  [Rawle was part of the convention in Pennsylvania that ratified the US Bill of Rights; he was offered the position of first US Attorney General but turned it down].

The most influential constitutional commentator of the late 19th century and early 20th century was Thomas Cooley. He was considered the greatest legal mind of the time. He wrote the text: The General Principles of Constitutional Law in the United States of America.  In his text, he explains exactly what the right is that is protected in the Second Amendment: “It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia, but this would be an interpretation not warranted by the intent. The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. But the law may make provision for the enrollment of all who are fit to perform military duty, or of a small number only, or it may wholly omit to make any provision at all; and if the right were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the actions or neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and that they need no permission or regulation of law for the purpose…”

Professor Randy Burnett of Boston University’s School of Law sums up the history of the Second Amendment this way: “What is shown by the historical record is that we have statements made before the second amendment was proposed, while the second amendment was being considered, and immediately after the second amendment was ratified, each of which reflects the understanding of the speaker that the amendment protects an individual right to have and bear arms.  What we don’t have – what we don’t find in the historical record is a single example of any contemporary at the time of the second amendment referring to it as anything other than an individual right.”

Professor Eugene Volokh, of the UCLA School of Law, comments: “Throughout the 1700’s, throughout the 1800’s, and up until the early 1900’s, the right to bear arms was universally seen as an individual right. There was virtually no authority for the collective rights/ states’ right point of view.” (States right to call a militia, that is).

But yet, in the late 20th century and now in the 21st century, somehow this history means nothing?

“The Second Amendment is a right held by States and does not protect the possession of a weapon by a private citizen.”  — The Court of Appeals for the 6th Circuit (2000)

“The right to keep and bear arms is meant solely to protect the right of the States to keep and maintain an armed militia.”   — The Court of Appeals for the 9th Circuit (1996)

The conservatives on the bench in the Heller case and then in the McDonald case got it right. They chose to be intellectually honest.

References:

DVD:  “In Search of the Second Amendment (A Documentary),” produced and directed by David T. Hardy (2006).  Second Amendment Films LLC

United States v. Miller, 307 U.S. 174 (1939)

District of Columbia v. Heller, 554 U.S. 570 (2008)

McDonald v. Chicago, 561 US 742 (2010)

Don B. Kates, Jr.  “Handgun Prohibition and the Original Meaning of the Second Amendment,” 82 Michigan Law Review (MICH. L. REV.) 204-273 (1983).    Referenced:  http://www.constitution.org/2ll/2ndschol/57mich.pdf

Resolutions of the Provincial Congress of Virginia (Patrick Henry) regarding the militia, March 23, 1775 – http://avalon.law.yale.edu/18th_century/res_cong_va_1775.asp

George Mason, the Virginia Declaration of Rights.  Referenced at:  http://www.history.org/almanack/life/politics/varights.cfm

Virginia’s Ratification of the Constitution, Elliott’s Debates (June 25, 1788) –  http://teachingamericanhistory.org/ratification/elliot/vol3/june25/

The proposed amendments to the Bill of Rights submitted by the State of Virginia (June 27, 1788) –  http://teachingamericanhistory.org/ratification/elliot/vol3/june27/

Teaching American History (an Intereactive Resource) –  http://teachingamericanhistory.org/ratification/overview/

What Our Founding Generation Would Have Said About Obamacare

tea-party-you-mean-we-can-tax-them-for-not-buying-tea       by Diane Rufino, February 25, 2017

Although we are on the verge of having President Obama’s signature piece of legislation, the Patient Protection and Affordable Care Act (aka, “Obamacare”) repealed and replaced, I am writing this piece to remind folks of the loss of freedom we suffered at the hands of President Obama and his administration with the unconstitutional and universal healthcare scheme he misrepresented and then forced on the American people.

The assault on the precious liberties of the American people were realized by only a handful (and certainly not the liberal members of the Supreme Court) and to half of these, it didn’t matter. When I talk about those who could care less, I am referring to the Republican members of Congress, who for years seemed unable to craft legislation or summon a vote.

Certainly, the caliber of an “American” has changed. We should all shutter for the future of our republic and for the security of the liberties our forefathers fought a revolution for. The debacle known as Obamacare has shown that they are never secure in the face of a hostile president who uses a “phone and a pen” and secret meetings to pressure legislation that that are violative of them.

Yes, it would be wonderful for everyone to have healthcare insurance to help them with their healthcare costs. It would be great if insurance didn’t make it cost prohibitive for those with pre-existing conditions. It would be great if times were like they were many years ago when everyone went to school, took their education seriously, got a job, and took care of themselves and their families. But jobs are scarce and people willing to invest in themselves and look for a job are even scarcer. It would be great if people took stock of their health and avoided tobacco, drugs, and fattening foods so that they are not obese and prone to diabetes and heart disease and therefore put an enormous strain on our healthcare system, but they don’t.

Yes, there are poor people out there. Some are poor because of a legitimate situation but most are poor because of a mindset and lifestyle choice. Some complain about being poor but don’t want a job; they merely want to be made more comfortable in poverty, which the Democratic Party is all-too-happy to do. Dependents make the most loyal voters. Why would anyone want to set an alarm to get up early every morning, worry about shuffling their kids to daycare, deal with traffic on the roads, put up with bullshit at work, put up with a horrible boss, have to show up even when they don’t feel well, strive to earn a decent performance evaluation just to hopefully be able to take home the same amount of money the following year, stress out about whether he or she has job security, balance work with other parenting obligations (such as when children get sick), and deal with limited days off when they could stay home, sleep late, get a welfare check from the government, have their apartments paid for, heating and air-conditioning paid for, food paid for, daycare covered (even though they aren’t working), a free cell phone, and free healthcare. Why do they need to work? Why would they even want to work?

American used to produce things. Americans used to be productive citizens. They were ambitious, resourceful, proud. Our government programs are creating the human waste and decay that is beginning to define America and destroy our cities, our schools, and our ability to live contently amongst each other. How can one group of Americans, who work hard, raise their families responsibly, pay their taxes and then find out that those exceedingly high taxes are going to pay for others and their families, have any respect for the latter? They don’t. They don’t look at them as equals.

But there is a constitutional way to solve problems and there is an unconstitutional way to solve them. And that’s why it is so important to vet presidential candidates for their constitutional character and not make choices based on skin color or social justice.

And so, a lesson taught so well that it inspired a revolution has been lost on today’s generation of Americans. And that lesson was to never yield individual liberties to the designs of government, even if those designs are well-intentioned. Supreme Court Justice Louis Brandeis once wrote: “Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficient… The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”

The lesson of the Boston Tea Party, an act of civil disobedience and protest that inspired today’s Sons of Liberty movement (the Tea Party), is an important and timeless lesson.

On the night of December 16,1773, members of the Sons of Liberty dressed as Indians, boarded three ships in the Boston harbor, and tossed 342 chests of tea overboard. They did this to protest the Tea Act. The Tea Act was actually not so bad in its provisions – it provided a high-quality tea, at lower costs than the colonists had been used to, and at a lower tax than what they had been previously used to. So why were the colonists so upset?

The Tea Act of 1773 was a follow-up to the Revenue Act, which was one of the laws in the hugely unpopular Townshend Acts. The Townshend Acts set new import duties (taxes) on British goods including paint, paper, lead, glass and tea. Due to protests from British merchants, whose trade was seriously effected by the American colonists refusing to buy the goods, Parliament ultimately repealed all of the duties (taxes) – except the tax on tea.

The principal objective of the Tea Act was to reduce the massive amount of tea held by the financially-troubled British East India Company in its London warehouses and to help the struggling company survive and to do so, it created a monopoly on the sale of tea to the colonies to the East India Company. It allowed the East India company to sell its large tea surplus below the prices charged by colonial competitors and thus under-cut and threatened local tea merchants. It was able to sell its tea at lower prices because the Act granted the Company the right to ship its tea directly to North America from its China warehouses (without first stopping at Britain to pay export duties). However, as mentioned earlier, the tea imposed on the colonies was still subject to the tea tax under the Revenue Act.

Specifically, the Tea Act provided:

1. Tea could be shipped in East India Company ships directly from China to the American colonies, thus avoiding the tax on goods first due England, as required by previous legislation.

2. A duty (tax) of 3 pence per pound was to be collected on tea delivered to America. [The previous duty (tax) was 12 pence (1 shilling) per pound, which was paid on tax which had been sent from Britain, so colonists would be paying LESS in tea tax with this Act. Also, interestingly, they would be getting their tea cheaper than the people of Britain !!].

3. The tea would be marketed and forced on colonists by special consignees (receivers of shipments) who would be selected by the East India Tea Company.

The new import tax of 3 pence was considerably less than the previous tea tax on the colonists, in which 12 pence (1 shilling) per pound on tea sent via Britain, so colonists would be paying LESS in tea tax with the Tea Act of 1773. Also, interestingly, they would be getting their tea cheaper than the people of Britain !! Even King George III was reported to comment that “the colonists will finally be happy!” and will stop protesting.

The Act also encouraged British agents to seek out local merchants of tea who were smuggling in tea (in violation of the new law) and shut down their operations. In effect, they were making sure the monopoly on tea was complete and that colonists were buying only the tea that the British Parliament were forcing on them.

While the average contemporary American might look at the bottom dollar and assess the law based on their pocketbook and conclude that the Tea Act was good and fair, our founding generation looked at the insidious violations to their fundamental liberties embedded in this seemingly harmless law.

First of all, the Tea Act forced the colonists to purchase Company tea on which the Townshend duties were paid, thus implicitly asserting Parliament’s right of taxation. Even though the costs and the taxes were lowered, they would not back down on their demand that there be “No Taxation Without Representation!” This basic English right was secured in the Magna Carta of 1215 and re-asserted over and over again up until the English Bill of Rights of 1689, which essentially transferred government power from the King to the peoples’ house – Parliament. And second, the Tea Act compelled the colonists to buy a product identified by a legislative body far away. It took away their right to enjoy competition and to pursue livelihoods.

If men like Sam Adams, John Hancock, James Otis Jr., Paul Revere were alive today, they would have called out Obamacare for violations similar to those in the Tea Act. They wouldn’t be complaining about the increased premiums or the frustration in signing up for healthcare… they would be sounding the alarm to government compulsion and unconstitutional taxation.

Let’s hope that when Obamacare is repealed it will be replaced by a scheme that divests the federal government of compulsion power over the American people and returns power to the free market system. And let’s help educate our lesser-informed members of society that those who are all too happy to receive hand-outs from the government are the most insidious threats to the very liberty upon which our country was founded. “A man who has nothing which he is willing to fight for, nothing which he cares about more than he does about his personal safety,” wrote John Stuart Mill, “is a miserable creature who has no chance of being free, unless made and kept so by the exertions of better men than himself.”

TENTH AMENDMENT KEEPERS: Keepers of the Tenth!

10th Amendment

by Diane Rufino, July 19, 2016

This short article is intended to alert the reader to the importance of the Tenth Amendment and hopefully inspire him or her to join the Tenth Amendment Movement and help bring government power back to the States in those areas historically belonging to them and reserved to them under the Tenth Amendment.

About the Tenth Amendment Movement:

The Tenth Amendment has its roots in the intent of each State to retain its full sovereignty and its right of self-determination. The Tenth Amendment comes from Article II of our very first constitution, the Articles of Confederation: “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.”  So concerned about their right of self-determination and their fear of being consumed by a centralized government under the US Constitution as drafted in 1787 at the Philadelphia Convention, that several crucial states were not willing to ratify it in convention. Virginia and New York would not ratify unless they were given assurances that amendments (for a Bill of Rights) would be added, and indeed they proposed several, including one with the language of the Tenth Amendment. To make their position firmer, they included Resumption Clauses with their Ordinances of Ratification which conditioned their ratification on the explicit right to resume all powers when they desired so. “We, the delegates of the people of Virginia do, in the name and on behalf of the people of Virginia, declare and make known that the powers granted under the Constitution, being derived from the people of the United States, may be resumed by them whensoever the same shall be perverted to their injury or oppression.”

Supporters of big government (such as Abraham Lincoln, FDR, LBJ, Obama, many Supreme Court justices, and today’s progressives) have actively down-played the Tenth Amendment because it embodies States’ Rights and state power.  In the years leading up to the War of 1861 and most certainly with that war and afterwards, the political elites in government understood that the ordinary checks and balances provided in the Constitution could be co-opted and controlled, but the most critical of all the checks and balances that our Founders provided on the federal government – the tension created by sovereign states (“Dual Sovereignty,” “federalism”… or as I like to refer to it: “Titan versus Titan”) – is the one they could not, especially the Southern States. And so began the movement to destroy the concept of States’ Rights, the great movement of Thomas Jefferson.  Indeed, most Americans believe what the victor of the War of 1861 (ie, the federal government) has indoctrinated, which is that the sovereignty of the federal government, in all cases, trumps the States and that the States are powerless to oppose the government or leave the Union.  The Tenth Amendment Movement knows that this indoctrination can be reversed by education and by the willing re-assertion of the Tenth Amendment by the States.  The Tenth Amendment Movement is about educating folks and especially members and candidates for state legislatures about the compact nature of the Constitution, which essentially says that the States, as willing parties, mutually agreed to the terms of the Constitution and assented to be bound by it (forming the Union, with its “creature” – the federal government – providing certain functions on their behalf), so long as the terms were faithfully adhered.  Compacts implicate the laws of contract and to some degree the law of agency.

Unquestionably, the Constitution was created as a social compact. It had all the requisites of a contract. There were parties: thirteen States, to which were added those that similarly ratified the document in the years after 1781. There was mutuality: each State promised to give up some of its sovereignty in exchange for what the Union promised to deliver – for receiving a “common defense” and some regulation of commerce between the States where it was necessary to ensure free trade. The Constitution was created by the States and ratified by the States, each acting in Convention. It could only be amended by and between the States. And if there was any doubt about the fact that the Constitution was an agreement entered into by and between the States, Article VII states: “The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the same.”  Every one of our Founding Fathers characterized the Constitution as a compact. It was referred to as such in the Constitutional Convention in Philadelphia in 1787, in all the State Ratifying Conventions, Anti-Federalist Papers, the Federalist Papers, in the communications by Thomas Jefferson, in the Kentucky and Virginia Resolutions, written by Thomas Jefferson and James Madison (respectively), in Madison’s 1800 Report, in the several famous speeches by John C. Calhoun, and in the Ordinances of Secession.

It is critical that education by the Tenth Amendment Movement emphasize this compact nature of the Constitution and destroy the constitutional myth espoused by Lincoln to subjugate and consolidate forever the States because only then do certain remedies apply – such as nullification, interposition, and even secession itself.

The Constitution’s text and history before the War of 1861 did NOT change as a result of the surrender at Appomattox. Contracts do not textually change by the use of brute force; contracts change ONLY by the agreement of the parties. The Constitution was still a “constitution between the States” after the war as it was before. It remains so now.

Years ago, it would have been very rare to find folks who supported such critical doctrines such as Nullification and Interposition.  Even talk of States’ Rights seemed to be unpopular.  Which state would even think of daring to question the federal government?  But over the years, as the federal government has become exceedingly ambitious, arrogant, tyrannical, corrupt, reckless, and out of touch with the American people, I’ve seen things change. I’ve watched in seminars how voices of skepticism turned to support. Instead of people telling me such remedies were illegitimate, unconstitutional, and dangerous, all of a sudden, they started asking how to approach their legislators about using them against the federal government.  States are looking to nullification and interposition to finally define boundaries.  States are passing nullification measures on a wide range of issues – Obamacare, federal gun control, hemp, medical marijuana.

I hope that if you believe in the importance of this movement, as I believe, you will get involved, help educate others, and help elect like-minded representatives to your State legislature.  Whether individual freedom will be secured for “generations to come and millions yet unborn” will depend upon how the States choose to value the Tenth Amendment.  And the path that each State takes can be determined through the voice of its people.

How can you get involved?  Contact the Tenth Amendment Center, through its website.  If you have a chapter in your state, contact any of its members.  If you don’t have a chapter, either volunteer to start one or help recruit someone with the necessary time and skills to organize and run it. If you belong to an organization, such as the Tea Party or any other community organization, request that speakers be invited to talk about the Tenth Amendment, Nullification, Interposition, Judicial Activism, the Constitution and Original Intent, and other such topics.

Educate, educate, educate. The most important thing you can do is become educated!  You will find educational articles and updates on my blogsite (www.forloveofgodandcountry.com), on the Tenth Amendment Center website (http://tenthamendmentcenter.com/), and on the Abbeville Institute website (http://www.abbevilleinstitute.org/)

Finally, follow my blogsite – Tenth Amendment Keepers (https://tenthamendmentkeepers.wordpress.com) and the Facebook site of the same name.

Together, we must Keep the Tenth Amendment relevant.

10th Amendment - button

Desperately Seeking Security – For Our Second Amendment

SECOND AMENDMENT - minuteman with gun

by Diane Rufino, July 20, 2016

To those who are serious about preventing the federal government from coming after our Second Amendment rights, please read and take note…..   

If you really want to make a difference and prevent the government from infringing on our Second Amendment, you have to actively support Nullification as a remedy and propose nullification measures to use the power of the States and the People to protect THEIR protections expressly stated in the US Constitution – the Bill of Rights.  I’m not saying you have to necessarily come out and use that word, but you absolutely need to support the concept.

Remember what the preamble to the Bill of Rights emphasizes: “The Conventions of a number of 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.”   In other words, amendments One through Nine are “further restrictions on the federal government” while the Tenth is a further declaration of the intent of the Constitution (as a compact) – that the States have only delegated a select few of their sovereign powers to a common government for common purposes – for a “common defense” and some regulation of commerce between the States where it was necessary to ensure free trade – and they retain and reserve the remainder of them.

You MUST start talking about the Constitution in terms of Compact Theory and reject any characterization of the country as a Union of people rather than States (Lincoln’s rhetoric).  Only when the Constitution is once again referred to and characterized as it was intended – a compact (history is complete with its references and justifications, including from all our Founding Fathers, the Constitutional Convention of 1787, from the writings of our two greatest founders Thomas Jefferson and James Madison, the State Ratifying Conventions, and even Article VII of the US Constitution itself), can we stand on the firm ground necessary to reassert our position – that the government has no authority to burden the rights recognized and protected in the Bill of Rights and indeed which formed the very basis for our independence from Great Britain. Compacts have implicit rights and remedies reserved to its signing parties, very similar to contract law and even agency law.

You MUST start talking about State Sovereignty Bills that will protect the citizens in every state from any gun control measure that burdens our Second Amendment guarantee.  And I mean, REAL sovereignty bills that include interposition provisions and intent to enforce them. Montana introduced such a bill (or resolution) several years ago which reasserted its sovereignty under the Tenth Amendment and characterizing her position vis-a-vis the other States and the federal government in terms of a social compact where each State, as a party to that compact, has the implicit right (just as a party to a contract) to reassert the original terms of the agreement, to ensure that they are faithfully followed, and to assert her right to sever its bond and withdraw from the Union when that compact has been violated and frustrated.  The Montana bill includes a provision that puts the federal government on notice that if it attempts to do any of a list of things (I believe the bill lists 5 specific things, including GUN CONTROL, limiting the Second Amendment), then it would consider it “a fatal breach of the compact that holds us together in the Union.”

This is the only way you fight back against the designs of our present bloated, self-serving government.  These bold assertions and the strong political posturing of States will put the government on notice and equally will put the US Supreme Court on notice as well. They move forward with gun control measures, they do so at the peril of the stability of the United States.

Petitions don’t amount to a hill of beans. Over 60% of the American people showed their opposition to government-mandated healthcare but the government went ahead with it anyway.

In a politically-incorrect and realistic world, laws are supposed to protect the good people and encourage constrained behavior for the benefit of an ordered and healthy/happy society.  A person should always be free to exercise his or her God-given rights and freedoms UNTIL it burdens another’s free exercise thereof.  Laws are also supposed to punish the bad people and DISCOURAGE bad behavior.  Our government is talking about Gun Control from an incorrect point of view with respect to the purpose of laws.  It seeks to punish good people because of the actions of bad people. In doing so, it will punish good people from doing what God inherently intended people to do – protect themselves, their families, and their property, using whatever means necessary to stop the evil.  The very definition of a criminal or the criminally-inclined is a person who doesn’t obey laws.  As with Prohibition, a prohibition on guns, a registry of guns, a long waiting period on gun ownership, a limitation on gun ownership and ammunition, etc etc will only create a thriving and creative black market which will only make sure that most criminals and super bad guys (and syndicates, such as terrorist organizations) will get lots of them while honest, law-abiding, vulnerable people which characterizes the overwhelming majority of Americans who now take huge risks now every time they venture out of their homes and go into public places, will have none.

I offer these comments as someone who is equally passionate in preventing the federal government from taking our rights away or even burdening them in any way.  It’s always a slippery slope to even give in just a little.

Remember, the Second Amendment is Freedom’s Strongest Guarantee !!

SECOND AMENDMENT - poster (last time I checked, it didn't read it is a Bill of Needs)

Impending Federal Gun Control Laws or Confiscation: States Don’t Fail Us Now !

NULLIFICATION - Gun Control (Clint Eastwood)

       by Diane Rufino, October 4, 2015

Obama Wants our Guns and It’s Time for the States to Make Clear: “We Will Not Comply…. We Will Nullify!”

Obama appears to be intent on burdening the second amendment – a fundamental and essential right of a free people.

The States need to decide where they stand: Either they will protect its people or the country is exactly what Abraham Lincoln envisioned – a country where the states are irrelevant and the federal government reigns absolutely supreme.

The States (and the local sheriffs) are the last line of defense between a rogue federal government and the People. The federal government appears to become more unhinged from the Constitution with each passing day and this should scare everyone. The need to erect lines of protection becomes ever more urgent. And this is where the States and sheriffs need to step in. They need to make clear that they will NULLIFY and INTERPOSE should the federal government attempt to infringe the right of the people to have and bear arms. We know what will be right around the corner should that happen… We only need to look at what happened to the unfortunate people of totalitarian regimes whose leaders confiscated guns. In this country, Patrick Henry explained it better than anyone else. A people who can’t defend themselves cannot assert their rights against the government and are therefore doomed to surrender them.

In 1775, after the British Crown and Parliament set out to punish the colonies for their “rebellious spirit” in frustrating its taxation schemes and its conduct in tossing tea overboard in Boston Harbor in protest of the monopoly established by the Tea Act by imposing the series of laws known as the Coercive Acts (unaffectionately referred to as the “Intolerable Acts” by the colonists), the colonies sought to appeal King George III to interpose on their behalf and end the arbitrary and oppressive treatment of them.

In September 1774, the First Continental Congress met in Philadelphia to address the colonies’ collective response to the Intolerable Acts. On October 25, it drafted a respectful response to the King, which would be known as the “Declarations and Resolves” and delegates were then dispatched to present them to him in person. Despite the anger that the colonies felt towards Great Britain after Parliament enacted the Coercive Acts, our first Congress was still willing to assert its loyalty to the king. In return for this loyalty, Congress asked the king to address and resolve the specific grievances of the colonies; in particular, it asked that the Acts be repealed. The petition, written by Continental Congressman John Dickinson, laid out what Congress felt was undo oppression of the colonies by the British Parliament. King George would ignore the Declarations and Resolves and rather, he would use them to mock the colonies. He laughed, claiming that while they publicly pledged their loyalty to him, they were probably preparing for armed revolution. He found them ingenuous and not very clever.

[Approximately eight months after the Declarations were presented to King George and without any response, on July 6, 1775, the Second Continental Congress adopted a resolution entitled “Declaration of the Causes and Necessity of Taking Up Arms.” On October 27, 1775 that King George appeared before both houses of the Parliament to address his concern about the increased rebellious nature of the colonies. He described the colonies as being in a state of rebellion, which he viewed as a traitorous action against himself and Britain. He began his speech by reading a “Proclamation of Rebellion” and urged Parliament to move quickly to end the revolt and bring order to the colonies. With that, he gave Parliament his consent to dispatch troops to use against his own subjects – the very people who looked to him for respect and protection].

On March 23, 1775, Patrick Henry attended a meeting of the Second Virginia Convention, with a very important issue he intended to address. It would be the second convention held after the Royal Governor of Virginia dissolved the colonial legislature, the House of Burgesses, for its solidarity with Massachusetts (after Parliament closed the port of Boston as punishment for the Boston Tea Party). The House of Burgesses would continue to meet, albeit in secret, but would operate in convention (These would serve as Virginia’s revolutionary provisional government).

While he knew the King had ignored the respectful petition by the First Continental Congress and had continued to treat them without the reserved rights afforded all English subjects, Henry could not know for sure that he would authorize military action against them. But he certainly saw it coming.

As tensions were mounting between Great Britain and the colonies, the Second Virginia Convention convened in secret at St. John’s Church in Richmond to discuss the Old Dominion’s strategy in negotiating with the Crown. The roughly 120 delegates who filed into Richmond’s St. John’s Church were a veritable “Who’s Who” of Virginia’s colonial leaders – George Washington, Thomas Jefferson, Richard Henry Lee, and Patrick Henry, a well-respected lawyer and orator. Henry had long held a reputation as one of Virginia’s most vocal opponents of England’s oppressive taxation schemes. During the Stamp Act controversy in 1765, he bordered on treasonous activity when he delivered a speech in which he hinted that King George risked meeting the same fate as Julius Caesar if he maintained his oppressive policies. As a recent delegate to the Continental Congress, he resounded Ben Franklin’s call for colonial solidarity by proclaiming, “The distinctions between Virginians, Pennsylvanians, New Yorkers and New Englanders are no more. I am not a Virginian; I am an American.”

Henry was convinced that war was around the corner. And he arrived at the Virginia Convention determined to persuade his fellow delegates to adopt a defensive stance against Great Britain. On that fateful evening of March 23, he put forward a resolution proposing that Virginia’s counties raise militiamen “to secure our inestimable rights and liberties, from those further violations with which they are threatened.” The suggestion of forming a colonial militia was not shocking in itself. After all, other colonies had already passed similar resolutions and had begun forming militias. And Henry himself had already taken it upon himself to raise a volunteer outfit in his home county of Hanover. Nevertheless, his proposal was not met with the approval he had hoped for. Many in the audience were skeptical at approving any measure that might be viewed as combative. Britain, after all, was the strongest military power in the world. They still held out hope for a peaceful reconciliation.

After several delegates had spoken on the issue, Patrick Henry rose from his seat in the third pew and took the floor. A Baptist minister who was present that evening would later describe him as having “an unearthly fire burning in his eye.” Just what happened next has long been a subject of debate. Henry spoke without notes, and no transcripts of his exact words have survived to today. The only known version of his remarks was reconstructed in the early 1800s by William Wirt, a biographer who corresponded with several men that attended the Convention. According to this version, Henry began by stating his intention to “speak forth my sentiments freely” before launching into an eloquent warning against appeasing the Crown.

I consider it as nothing less than a question of freedom or slavery; and in proportion to the magnitude of the subject ought to be the freedom of the debate. It is only in this way that we can hope to arrive at truth, and fulfill the great responsibility which we hold to God and our country. Should I keep back my opinions at such a time, through fear of giving offense, I should consider myself as guilty of treason towards my country, and of an act of disloyalty toward the Majesty of Heaven, which I revere above all earthly kings.

Mr. President, it is natural to man to indulge in the illusions of hope. We are apt to shut our eyes against a painful truth, and listen to the song of that siren till she transforms us into beasts. Is this the part of wise men, engaged in a great and arduous struggle for liberty? Are we disposed to be of the number of those who, having eyes, see not, and, having ears, hear not, the things which so nearly concern their temporal salvation?

I have but one lamp by which my feet are guided, and that is the lamp of experience. I know of no way of judging of the future but by the past. And judging by the past, I wish to know what there has been in the conduct of the British ministry for the last ten years to justify those hopes with which gentlemen have been pleased to solace themselves and the House. Is it that insidious smile with which our petition has been lately received? Trust it not, sir; it will prove a snare to your feet. Suffer not yourselves to be betrayed with a kiss. Ask yourselves how this gracious reception of our petition comports with those warlike preparations which cover our waters and darken our land. Are fleets and armies necessary to a work of love and reconciliation? Have we shown ourselves so unwilling to be reconciled that force must be called in to win back our love? Let us not deceive ourselves, sir. These are the implements of war and subjugation; the last arguments to which kings resort. I ask gentlemen, sir, what means this martial array, if its purpose be not to force us to submission? Can gentlemen assign any other possible motive for it? Has Great Britain any enemy, in this quarter of the world, to call for all this accumulation of navies and armies? No, sir, she has none. They are meant for us: they can be meant for no other. They are sent over to bind and rivet upon us those chains which the British ministry have been so long forging. And what have we to oppose to them? Shall we try argument? Sir, we have been trying that for the last ten years. Have we anything new to offer upon the subject? Nothing. We have held the subject up in every light of which it is capable; but it has been all in vain. Shall we resort to entreaty and humble supplication? What terms shall we find which have not been already exhausted? Let us not, I beseech you, sir, deceive ourselves. Sir, we have done everything that could be done to avert the storm which is now coming on. We have petitioned; we have remonstrated; we have supplicated; we have prostrated ourselves before the throne, and have implored its interposition to arrest the tyrannical hands of the ministry and Parliament. Our petitions have been slighted; our remonstrances have produced additional violence and insult; our supplications have been disregarded; and we have been spurned, with contempt, from the foot of the throne! In vain, after these things, may we indulge the fond hope of peace and reconciliation. There is no longer any room for hope. If we wish to be free– if we mean to preserve inviolate those inestimable privileges for which we have been so long contending–if we mean not basely to abandon the noble struggle in which we have been so long engaged, and which we have pledged ourselves never to abandon until the glorious object of our contest shall be obtained–we must fight! I repeat it, sir, we must fight! An appeal to arms and to the God of hosts is all that is left us!

They tell us, sir, that we are weak and unable to cope with so formidable an adversary. But when shall we be stronger? Will it be the next week, or the next year? Will it be when we are totally disarmed, and when a British guard shall be stationed in every house? Shall we gather strength by irresolution and inaction? Shall we acquire the means of effectual resistance by lying supinely on our backs and hugging the delusive phantom of hope, until our enemies shall have bound us hand and foot? Sir, we are not weak if we make a proper use of those means which the God of nature hath placed in our power. The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us……. There is no retreat but in submission and slavery! Our chains are forged!

It is in vain, sir, to extenuate the matter. Gentlemen may cry, Peace, Peace– but there is no peace. The war is actually begun…… Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!

Less than a month later, shots would be fired at Lexington and Concord. The war that Henry saw coming had finally begun.

Patrick Henry had the intuition to understand that a leader “whose character is thus marked by every act which defines a tyrant” cannot be trusted to allow his people to enjoy the freedom that they petition for. And when push comes to shove, the more they demand it, the more oppressive his response would be. And thus, since that leader, King George III, was considered to be unfit to be the ruler of a free people, in the mind of Patrick Henry, if he indeed decided to use force to subjugate the people of Virginia should be prepared with a force of their own to defend their liberty. Henry would later refer to Liberty as “that precious gem.”

A leader “whose character is thus marked by every act which defines a tyrant is unfit to be the ruler of a free people.”

Americans still consider themselves a free people. And Americans still want to believe their government believes in their right to be so. But the one problem is that most Americans believe their “government” to be the federal government. A people who understand the foundations and underpinnings of liberty and freedom know that the federal government is not their government but rather their state government is their government. The federal government primarily serves the states, or at least, it was intended that way. Yet for limited objects, expressly defined in Article I, Section 8, its legislation can touch the people.

It is the state government, and not the federal government, that can protect an individual’s inalienable liberties. Which government in recent years has shown disregard for the fundamental rights of the People – federal or state? Which government has enacted the largest tax increase in our nation’s history? Which government has denied people the fundamental right to manage their healthcare? Which government has ignored immigration laws and attempted to fundamentally change the character of the nation illegally? Which government has demanded that marriage laws (based on natural criteria in place for thousands of years) be fundamentally altered? And which government has poised itself for years now to restrain the people in their right to have and bear arms? Again, a government “whose character is thus marked by every act which defines a tyrant is unfit to be the ruler of a free people.”

The American states, after fighting and winning a costly war for their independence, had to decide on the best form of government to embrace the values they proclaimed in the Declaration of Independence. They asserted the same rights that the British held dear and which they fought to defend, spanning hundreds of years, but their task was to secure them more firmly so that their posterity – “millions yet unborn and generations to come” (from the anti-Federalist paper, Brutus I) – would enjoy the same degree of freedom. They didn’t want Americans to endure the same tortured history as the British, who enjoyed freedom under benevolent kings but oppression and even death under tyrants. Freedom, according to Thomas Jefferson, including as alluded to in the Declaration of Independence, was the right to be free from an aggressive or oppressive government. To that end, the government established by the Constitution of 1787, with powers limited in DC and balanced by the bulk of powers retained by the states, with its separation of powers and elaborate system of checks and balances, with its week judicial branch, and with a Bill of Rights, was believed to provide the best system to preserve the rights they fought for. Furthermore, in America, rights are understood to be inalienable, endowed by our Creator. In Britain, on the other hand, rights are those generously granted by government. Rights were only those limitations on government that Kings recognized by a signature on a charter.

The US Bill of Rights, modeled after the English Bill of Rights of 1689, exists to protect the individual against the government. Included in our Bill of Rights are the rights to be free from a national religion, the right to the free exercise of one’s religion and the rights of conscience. It includes the right of free speech, the right of assembly, the right to a free press, the right to petition the government, the right to have and bear arms, the right to be free in one’s home, papers, and effects from unreasonable searches and seizures, the right to a jury trial, various rights of a person accused of a crime, the right not to have one’s property arbitrarily confiscated by the government, the right to be free from cruel and unusual punishment, and others.

The second amendment is currently under unrelenting attack by our current administration, with Obama leading the charge. Just two days ago, he spoke not only about the need for gun control but hinted about possible confiscation. When Obama spoke in reaction to the heinous October 1 attack on Umpqua Community College, in Oregon, he went beyond his usual calls for more gun control and suggested instead that the United States consider following the path taken by Australia and Great Britain.

In the mid-1990s Australia and Great Britain both instituted complete bans on firearm possession. And Obama referenced those bans: “We know that other countries, in response to one mass shooting, have been able to craft laws that almost eliminate mass shootings. Friends of ours, allies of ours – Great Britain, Australia, countries like ours. So we know there are ways to prevent it.”

What Obama didn’t clarify is that Australia has no constitution nor does it have a Bill of Rights. The rights of the people are not absolute. Great Britain, which also does not have a constitution, per se, does protect gun rights to some degree in its Bill of Rights of 1689. That document allowed for Protestant citizenry to “have Arms for their Defense suitable to their conditions and as allowed by law,” and restricted the right of the English Crown to have a standing army or to interfere with Protestants’ right to bear arms “when Papists were both armed and employed contrary to Law.” It also established that regulating the right to bear arms was one of the powers of Parliament and not of the monarch. Thus, the right was not absolute and it was clearly articulated as such. In fact, Sir William Blackstone wrote in his Blackstone’s Commentaries on the Laws of England (1765) about the right to have arms being auxiliary to the “natural right of resistance and self-preservation,” but subject to suitability and allowance by law.

As Mark Levin explained: “The second amendment isn’t in the Bill of Rights to protect you in your hunting rights. The second amendment isn’t there to protect you in your sports-shooting rights. The second amendment was added to the Constitution to protect you against a centralized government. The militia part of the second amendment underscores this point. The point is that the states can maintain militias to protect the states from an oppressive tyrannical central government. I don’t mean to be provocative, but that’s just history. That’s why we have the second amendment.”

What is that history? Our Founding Fathers, having just broken away from Great Britain, understood the new federal government they were ratifying might one day become just as tyrannical. If it had the authority to control citizen access to firearms, then it could disarm them, just as the British attempted to do. This would make any attempts to restore liberties futile. The second amendment was specifically included in the Bill of Rights to prevent this.

James Madison, the father of the Constitution, said in 1789 that “A well-regulated militia, composed of the body of the people, trained to arms, is the best and most natural defense of a free country.” When the Founders wrote of a “well regulated” militia, they meant that militias needed to be well-regulated through training and drilling in order to be effective in battle. It was merely common sense. This could only happen if citizens had unrestricted access to firearms.

The Second Amendment’s guarantee of an individual’s right to have and bear arms is the right which secures all other rights. The First Amendment protects the other rights by permitting the speech and the expression, and the assembly and the petition and the use of the press to call out the government when it tramples on those rights, but the Second Amendment, with its force, is able to secure them, should the government ignore the former. In other words, when the First Amendment fails, the Second is there to preserve and secure the people in their liberty.

The Preamble to the Bill of Rights expresses the States’ intention in demanding a Bill of Rights as a condition to ratification. It reads: “The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, that in order to prevent misconstruction or abuse of its powers, further declaratory and restrictive clauses should be added, which shall extend the ground of public confidence in the Government, and will best ensure the beneficent ends of its institution” According to the Preamble, the federal government is PROHIBITED from even contemplating the issue of abridging the rights guaranteed in the second amendment. The liberty rights contained in the Bill of Rights demand an ABSOLUTE BAN by the federal government action in those areas. Being that the Supreme Court has been in the business of enlarging the rights contained in those amendments (ie, privacy rights, for example, rights of criminals), we can assume that our right to have and bear arms is similarly enlarged.

Although the Bill of Rights was adopted after the Constitution was ratified, it was the absolute assurance by James Madison that he would draft a Bill of Rights and have it submitted and adopted by the First US Congress (June 8, 1788) that convinced several skeptical, and important, states to finally ratify. In other words, BUT FOR the fact that a Bill of Rights would be added to the Constitution to further protect the rights of the People and the States, the Constitution would never have been adopted and the Union, as we know it, would not have been formed. After the delegates concluded their convention in Philadelphia in September 1787, it was clear that the Constitution that had been written was not very popular (particularly with the anti-Federalists). Some very important delegates refused to even sign it and some promised to do all they could to prevent its ratification by the states. Edmund Randolph and George Mason (both of VA), Elbridge Gerry (of MA), John Lansing and Robert Yates (both of NY), and Martin Luther (of DE) all refused to sign because of a lack of Bill of Rights and a deep concern that the government created would endanger the rights of the States. Yates would go on to write some of the strongest anti-Federalist essays, under the pen name Brutus, and fellow New Yorker, Governor George Clinton, would write some as well (under the name Cato). Two of our most important Founding Fathers, Patrick Henry and Richard Henry Lee, although asked to be delegates to the Convention, declined because they were suspicious of those running the Convention (namely Madison, whom they suspected to have ambitious plans for the meeting). They believed a government stronger than the Articles would compromise the sovereignty of the States.

Indeed, it was unclear whether the Constitution would be ratified by the States. The Constitution was in deep trouble in the conventions of four states – Virginia, New York, Massachusetts, and North Carolina. They were some of the biggest states. The first three were the most important and influential of the States. Without the guarantee of a Bill of Rights, those states were not going to ratify. The formation of a “more perfect union” appeared to be in jeopardy. Even with the guarantee, the votes for ratification were by a fairly slim margin. North Carolina had rejected the Constitution outright. It was not until a Bill of Rights was added that it called another ratifying convention to take another vote.

Does anyone believe that a constitution that expressly created a government as large, bloated, concentrated, oppressive, arrogant, monopolistic, and corrupt as the one in existence today would have been drafted and produced by the delegates to the Constitutional Convention of 1787? Does anyone believe that the delegates in attendance at that convention, the great leaders of our founding generation, knowing their concerns to respect the spirit of the Revolution and to protect their state sovereignty (and yield as little sovereign power as possible), would have drafted and signed such a document? And even if such a document would have been produced at the Convention, does anyone believe a single State would have ratified it and surrendered essentially all of its sovereignty? NO WAY !! There is no way that Virginia or New York or Massachusetts or North Carolina would have ratified it. NO WAY! None of them would have ratified it.

And yet we’ve allowed the government – what it’s become – to assert, unchallenged, that whatever it does and says is the supreme law of the land. Tyranny is defined as the action of an unjust and oppressive government. For a country that defines the boundaries of government on its people through a written constitution, tyranny occurs when unconstitutional laws are forced – enforced – on the people. After all, when a government assumes powers not delegated to it, it naturally has to usurp them from their rightful depository, which in the case of the United States is the States and the People.

Our government – all three branches – continue to act to mock individual liberty and states’ rights. Certainly our president does so at every given opportunity. Our government – all three branches – continues to act to ignore and frustrate the will of the People even though a democracy is their birthright. As Daniel Webster once wrote: “It is, Sir, the people’s government, made for the people, made by the people, and answerable to the people.” (note that this quote is the forerunner to Lincoln’s famous line in the Gettysburg Address).

The federal government, which was conceived as a “government of the people, by the people, for the people,” unfortunately now only rests on two of those legs. In has failed for many years now to be a government “for the people.”

Enough is enough.

Gun Rights mark a line in the sand. That line represents a tolerance of government that absolutely cannot be crossed. If government should attempt gun control that burdens or attempt confiscation, the line will have been crossed. The Supreme Court WOULD HAVE TO IMMEDIATELY STRIKE THAT ACTION DOWN. Hell, the Supreme Court has held over and over again that any action by government that should happen to burden even ever so lightly a woman’s right to have an abortion cannot be tolerated. And an abortion actually and absolutely KILLS another human being – an innocent and helpless one. The right to an abortion is NOT mentioned in the Constitution and certainly NOT in the Bill of Rights. The right to have and bear arms is. It is addressed plainly and without condition or pre-condition in the second amendment. By applying the same rational as the Court uses to ensure women their unfettered right and access to an abortion, the government MUST NOT in any way, shape, or form burden an individual’s right to have and bear arms. The right to bear arms is rooted in the natural rights of self-defense and self-preservation. The right to have an abortion is rooted in the selfish goal of convenience.

When the government crosses that line, the Declaration of Independence tells us what the Peoples’ rights are, under the theory of social compact (which the US Constitution is):

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, —That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Should the government attempt to burden or deny the American people of their gun rights, our natural right of self-defense (even from our own government) and self-preservation (to live free, as our Creator endowed us and as nature intended) allows us to dissolve our government – that is absolve us from allegiance to it – and establish a new government that is dedicated to the protection of our God-given liberties. Personally, I believe the Constitution is perfect; it just needs verbage that makes it absolutely clear that its very terms are its limitations, there are no elastic clauses or implied powers, there is no independent legislative power attached to the General Welfare or Necessary and Proper clauses, no object expressly delegated to the legislative branch is allowed to be delegated to an un-elected group of people, Congress is expressly forbidden to tax and spend for any reason other than what is listed expressly in Article I Section 8, a provision should be included to give the states the power to audit the spending budget of the government for strict constitutionality, a provision should be added to require Congress to balance its budget every year, the Supreme Court can only offer an opinion which is subject to an appeal to the State courts, the “Wall of Separation” is removed from federal court jurisprudence, the president’s powers must be severely limited by additional language in the Constitution, presidents will no longer be allowed to issue executive orders, the bar for impeachment of a president will be lowered and in certain cases Congress MUST issue articles of impeachment and seek to remove him, consequences will be provided for in the Constitution for representatives and officials who violate their oath of office, the 14th amendment must be clarified as not intending to include the incorporation doctrine (so that the Bill of Rights once again only applies to the actions of the federal government), the 16th and 17th amendments must be repealed, an outright prohibition and a provision should be added that states that when the federal government over-steps its authority that threatens the balance of power between federal government and the states, it shall be viewed as a fatal breach of the compact that binds the states and as such they have the option of dissolving their allegiance. However, if the Constitution cannot be amended to assure that a future government remains adherent to its limits, then James Madison has set the example for us. We don’t have to “amend” the Constitution if we believe it to be seriously flawed. We can simply start from scratch.

The second paragraph of the Declaration of Independence continues:

Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security….”

Our government has been intent on enlarging and redefining its powers almost from the very beginning. It has done everything it has wanted to do to achieve the things it believed it needed to do or simply wanted to do (as in Barack Obama’s case). A government dependent on the separation of powers for proper functioning has become a government monopoly to ignore proper functioning in order to become what the British Kings used to be…. Supreme, domineering, coercive, and oppressive. The people’s government has been replaced by the government’s government. Liberty-loving Americans have been disposed to suffer long enough. Threats to take away our gun rights, however, would be the final straw.

Should Obama and his administration do more than simply talk about gun control and possible confiscation, it would be incumbent upon the states to NULLIFY any legislation or policy and then INTERPOSE for the protection and security of the People to have and bear arms. The next step, should the government fail to back down, would be to declare the federal action or actions to constitute a FATAL BREACH of the compact that brought the states together in the union and therefore the bonds of allegiance are severed and the Union creating the “United States” is thereby dissolved. The federal government would therefore have no jurisdiction except within the District of Columbia, I suppose.

The states need to act – NOW. Each state needs to adopt resolutions and enact legislation protecting the gun rights of its citizens. Those that respect the second amendment need to start attracting gun manufacturing and ammunition industry to their states. The states need to put the president and the administration, and including the federal courts, on notice of their intentions.

If the federal government intends to or attempts to violate the second amendment, the People need to know they can count on their government – that is, their state government. I hope their response will be clear and collective – WE WILL NOT COMPLY… WE WILL NULLIFY! Liberty will require such a response.

References:

Patrick Henry’s Speech, History.com. Referenced at: http://www.history.com/news/patrick-henrys-liberty-or-death-speech-240-years-ago

Congress Petitions English King to Address Grievances, History.com. Referenced at: http://www.history.com/this-day-in-history/congress-petitions-english-king-to-address-grievances

King George III Speaks to Parliament of American Rebellion, History.com. Referenced at: http://www.history.com/this-day-in-history/king-george-iii-speaks-to-parliament-of-american-rebellion

Declaration and Resolves of the First Continental Congress. Referenced at: http://avalon.law.yale.edu/18th_century/resolves.asp

“Obama Trashes the Constitution and No One Says a Damn Thing!”, Mark Levin Show. Referenced at: https://www.youtube.com/results?search_query=mark+levin+obama+trashes+the+constitution+and+no+one+says+a+thing Also referenced at: http://therightscoop.com/mark-levin-obama-trashes-the-constitution-and-nobody-says-a-damn-thing/

“Obama Goes Beyond Mere Gun Control; Hints at Confiscation,” Breitbart News, October 3, 2015. Referenced at: http://www.breitbart.com/big-government/2015/10/03/obama-goes-beyond-mere-gun-control-hints-confiscation/

“The Second Amendment: It’s Meaning and Purpose, The Tenth Amendment Center, September 22, 2014. Referenced at: http://tenthamendmentcenter.com/2014/09/22/2nd-amendment-original-meaning-and-purpose/

“Madison’s Introduction of the Bill of Rights,” usconstitution.net. Referenced at: http://www.usconstitution.net/madisonbor.html

Appendix:

The Intolerable Acts included the following:
(i) Boston Port Act, which closed the port of Boston to all colonists until damages from the Boston Tea Party were paid.
(ii) Massachusetts Government Act, which gave the British government total control of town meetings, taking all decisions out of the hands of the colonists.
(iii) Administration of Justice Act, which made British officials immune to criminal prosecution in America.
(iv) The Quartering Act, which required colonists to house and quarter British troops on demand, including in private homes as a last resort.

by Diane Rufino, October 4, 2015

Obama Wants our Guns and It’s Time for the States to Make Clear: “We Will Not Comply…. We Will Nullify!”

Obama appears to be intent on burdening the second amendment – a fundamental and essential right of a free people.

The States need to decide where they stand: Either they will protect its people or the country is exactly what Abraham Lincoln envisioned – a country where the states are irrelevant and the federal government reigns absolutely supreme.

The States (and the local sheriffs) are the last line of defense between a rogue federal government and the People. The federal government appears to become more unhinged from the Constitution with each passing day and this should scare everyone. The need to erect lines of protection becomes ever more urgent. And this is where the States and sheriffs need to step in. They need to make clear that they will NULLIFY and INTERPOSE should the federal government attempt to infringe the right of the people to have and bear arms. We know what will be right around the corner should that happen… We only need to look at what happened to the unfortunate people of totalitarian regimes whose leaders confiscated guns. In this country, Patrick Henry explained it better than anyone else. A people who can’t defend themselves cannot assert their rights against the government and are therefore doomed to surrender them.

In 1775, after the British Crown and Parliament set out to punish the colonies for their “rebellious spirit” in frustrating its taxation schemes and its conduct in tossing tea overboard in Boston Harbor in protest of the monopoly established by the Tea Act by imposing the series of laws known as the Coercive Acts (unaffectionately referred to as the “Intolerable Acts” by the colonists), the colonies sought to appeal King George III to interpose on their behalf and end the arbitrary and oppressive treatment of them.

In September 1774, the First Continental Congress met in Philadelphia to address the colonies’ collective response to the Intolerable Acts. On October 25, it drafted a respectful response to the King, which would be known as the “Declarations and Resolves” and delegates were then dispatched to present them to him in person. Despite the anger that the colonies felt towards Great Britain after Parliament enacted the Coercive Acts, our first Congress was still willing to assert its loyalty to the king. In return for this loyalty, Congress asked the king to address and resolve the specific grievances of the colonies; in particular, it asked that the Acts be repealed. The petition, written by Continental Congressman John Dickinson, laid out what Congress felt was undo oppression of the colonies by the British Parliament. King George would ignore the Declarations and Resolves and rather, he would use them to mock the colonies. He laughed, claiming that while they publicly pledged their loyalty to him, they were probably preparing for armed revolution. He found them ingenuous and not very clever.

[Approximately eight months after the Declarations were presented to King George and without any response, on July 6, 1775, the Second Continental Congress adopted a resolution entitled “Declaration of the Causes and Necessity of Taking Up Arms.” On October 27, 1775 that King George appeared before both houses of the Parliament to address his concern about the increased rebellious nature of the colonies. He described the colonies as being in a state of rebellion, which he viewed as a traitorous action against himself and Britain. He began his speech by reading a “Proclamation of Rebellion” and urged Parliament to move quickly to end the revolt and bring order to the colonies. With that, he gave Parliament his consent to dispatch troops to use against his own subjects – the very people who looked to him for respect and protection].

On March 23, 1775, Patrick Henry attended a meeting of the Second Virginia Convention, with a very important issue he intended to address. It would be the second convention held after the Royal Governor of Virginia dissolved the colonial legislature, the House of Burgesses, for its solidarity with Massachusetts (after Parliament closed the port of Boston as punishment for the Boston Tea Party). The House of Burgesses would continue to meet, albeit in secret, but would operate in convention (These would serve as Virginia’s revolutionary provisional government).

While he knew the King had ignored the respectful petition by the First Continental Congress and had continued to treat them without the reserved rights afforded all English subjects, Henry could not know for sure that he would authorize military action against them. But he certainly saw it coming.

As tensions were mounting between Great Britain and the colonies, the Second Virginia Convention convened in secret at St. John’s Church in Richmond to discuss the Old Dominion’s strategy in negotiating with the Crown. The roughly 120 delegates who filed into Richmond’s St. John’s Church were a veritable “Who’s Who” of Virginia’s colonial leaders – George Washington, Thomas Jefferson, Richard Henry Lee, and Patrick Henry, a well-respected lawyer and orator. Henry had long held a reputation as one of Virginia’s most vocal opponents of England’s oppressive taxation schemes. During the Stamp Act controversy in 1765, he bordered on treasonous activity when he delivered a speech in which he hinted that King George risked meeting the same fate as Julius Caesar if he maintained his oppressive policies. As a recent delegate to the Continental Congress, he resounded Ben Franklin’s call for colonial solidarity by proclaiming, “The distinctions between Virginians, Pennsylvanians, New Yorkers and New Englanders are no more. I am not a Virginian; I am an American.”

Henry was convinced that war was around the corner. And he arrived at the Virginia Convention determined to persuade his fellow delegates to adopt a defensive stance against Great Britain. On that fateful evening of March 23, he put forward a resolution proposing that Virginia’s counties raise militiamen “to secure our inestimable rights and liberties, from those further violations with which they are threatened.” The suggestion of forming a colonial militia was not shocking in itself. After all, other colonies had already passed similar resolutions and had begun forming militias. And Henry himself had already taken it upon himself to raise a volunteer outfit in his home county of Hanover. Nevertheless, his proposal was not met with the approval he had hoped for. Many in the audience were skeptical at approving any measure that might be viewed as combative. Britain, after all, was the strongest military power in the world. They still held out hope for a peaceful reconciliation.

After several delegates had spoken on the issue, Patrick Henry rose from his seat in the third pew and took the floor. A Baptist minister who was present that evening would later describe him as having “an unearthly fire burning in his eye.” Just what happened next has long been a subject of debate. Henry spoke without notes, and no transcripts of his exact words have survived to today. The only known version of his remarks was reconstructed in the early 1800s by William Wirt, a biographer who corresponded with several men that attended the Convention. According to this version, Henry began by stating his intention to “speak forth my sentiments freely” before launching into an eloquent warning against appeasing the Crown.

I consider it as nothing less than a question of freedom or slavery; and in proportion to the magnitude of the subject ought to be the freedom of the debate. It is only in this way that we can hope to arrive at truth, and fulfill the great responsibility which we hold to God and our country. Should I keep back my opinions at such a time, through fear of giving offense, I should consider myself as guilty of treason towards my country, and of an act of disloyalty toward the Majesty of Heaven, which I revere above all earthly kings.

Mr. President, it is natural to man to indulge in the illusions of hope. We are apt to shut our eyes against a painful truth, and listen to the song of that siren till she transforms us into beasts. Is this the part of wise men, engaged in a great and arduous struggle for liberty? Are we disposed to be of the number of those who, having eyes, see not, and, having ears, hear not, the things which so nearly concern their temporal salvation?

I have but one lamp by which my feet are guided, and that is the lamp of experience. I know of no way of judging of the future but by the past. And judging by the past, I wish to know what there has been in the conduct of the British ministry for the last ten years to justify those hopes with which gentlemen have been pleased to solace themselves and the House. Is it that insidious smile with which our petition has been lately received? Trust it not, sir; it will prove a snare to your feet. Suffer not yourselves to be betrayed with a kiss. Ask yourselves how this gracious reception of our petition comports with those warlike preparations which cover our waters and darken our land. Are fleets and armies necessary to a work of love and reconciliation? Have we shown ourselves so unwilling to be reconciled that force must be called in to win back our love? Let us not deceive ourselves, sir. These are the implements of war and subjugation; the last arguments to which kings resort. I ask gentlemen, sir, what means this martial array, if its purpose be not to force us to submission? Can gentlemen assign any other possible motive for it? Has Great Britain any enemy, in this quarter of the world, to call for all this accumulation of navies and armies? No, sir, she has none. They are meant for us: they can be meant for no other. They are sent over to bind and rivet upon us those chains which the British ministry have been so long forging. And what have we to oppose to them? Shall we try argument? Sir, we have been trying that for the last ten years. Have we anything new to offer upon the subject? Nothing. We have held the subject up in every light of which it is capable; but it has been all in vain. Shall we resort to entreaty and humble supplication? What terms shall we find which have not been already exhausted? Let us not, I beseech you, sir, deceive ourselves. Sir, we have done everything that could be done to avert the storm which is now coming on. We have petitioned; we have remonstrated; we have supplicated; we have prostrated ourselves before the throne, and have implored its interposition to arrest the tyrannical hands of the ministry and Parliament. Our petitions have been slighted; our remonstrances have produced additional violence and insult; our supplications have been disregarded; and we have been spurned, with contempt, from the foot of the throne! In vain, after these things, may we indulge the fond hope of peace and reconciliation. There is no longer any room for hope. If we wish to be free– if we mean to preserve inviolate those inestimable privileges for which we have been so long contending–if we mean not basely to abandon the noble struggle in which we have been so long engaged, and which we have pledged ourselves never to abandon until the glorious object of our contest shall be obtained–we must fight! I repeat it, sir, we must fight! An appeal to arms and to the God of hosts is all that is left us!

They tell us, sir, that we are weak and unable to cope with so formidable an adversary. But when shall we be stronger? Will it be the next week, or the next year? Will it be when we are totally disarmed, and when a British guard shall be stationed in every house? Shall we gather strength by irresolution and inaction? Shall we acquire the means of effectual resistance by lying supinely on our backs and hugging the delusive phantom of hope, until our enemies shall have bound us hand and foot? Sir, we are not weak if we make a proper use of those means which the God of nature hath placed in our power. The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us……. There is no retreat but in submission and slavery! Our chains are forged!

It is in vain, sir, to extenuate the matter. Gentlemen may cry, Peace, Peace– but there is no peace. The war is actually begun…… Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!

Less than a month later, shots would be fired at Lexington and Concord. The war that Henry saw coming had finally begun.

Patrick Henry had the intuition to understand that a leader “whose character is thus marked by every act which defines a tyrant” cannot be trusted to allow his people to enjoy the freedom that they petition for. And when push comes to shove, the more they demand it, the more oppressive his response would be. And thus, since that leader, King George III, was considered to be unfit to be the ruler of a free people, in the mind of Patrick Henry, if he indeed decided to use force to subjugate the people of Virginia should be prepared with a force of their own to defend their liberty. Henry would later refer to Liberty as “that precious gem.”

A leader “whose character is thus marked by every act which defines a tyrant is unfit to be the ruler of a free people.”

Americans still consider themselves a free people. And Americans still want to believe their government believes in their right to be so. But the one problem is that most Americans believe their “government” to be the federal government. A people who understand the foundations and underpinnings of liberty and freedom know that the federal government is not their government but rather their state government is their government. The federal government primarily serves the states, or at least, it was intended that way. Yet for limited objects, expressly defined in Article I, Section 8, its legislation can touch the people.

It is the state government, and not the federal government, that can protect an individual’s inalienable liberties. Which government in recent years has shown disregard for the fundamental rights of the People – federal or state? Which government has enacted the largest tax increase in our nation’s history? Which government has denied people the fundamental right to manage their healthcare? Which government has ignored immigration laws and attempted to fundamentally change the character of the nation illegally? Which government has demanded that marriage laws (based on natural criteria in place for thousands of years) be fundamentally altered? And which government has poised itself for years now to restrain the people in their right to have and bear arms? Again, a government “whose character is thus marked by every act which defines a tyrant is unfit to be the ruler of a free people.”

The American states, after fighting and winning a costly war for their independence, had to decide on the best form of government to embrace the values they proclaimed in the Declaration of Independence. They asserted the same rights that the British held dear and which they fought to defend, spanning hundreds of years, but their task was to secure them more firmly so that their posterity – “millions yet unborn and generations to come” (from the anti-Federalist paper, Brutus I) – would enjoy the same degree of freedom. They didn’t want Americans to endure the same tortured history as the British, who enjoyed freedom under benevolent kings but oppression and even death under tyrants. Freedom, according to Thomas Jefferson, including as alluded to in the Declaration of Independence, was the right to be free from an aggressive or oppressive government. To that end, the government established by the Constitution of 1787, with powers limited in DC and balanced by the bulk of powers retained by the states, with its separation of powers and elaborate system of checks and balances, with its week judicial branch, and with a Bill of Rights, was believed to provide the best system to preserve the rights they fought for. Furthermore, in America, rights are understood to be inalienable, endowed by our Creator. In Britain, on the other hand, rights are those generously granted by government. Rights were only those limitations on government that Kings recognized by a signature on a charter.

The US Bill of Rights, modeled after the English Bill of Rights of 1689, exists to protect the individual against the government. Included in our Bill of Rights are the rights to be free from a national religion, the right to the free exercise of one’s religion and the rights of conscience. It includes the right of free speech, the right of assembly, the right to a free press, the right to petition the government, the right to have and bear arms, the right to be free in one’s home, papers, and effects from unreasonable searches and seizures, the right to a jury trial, various rights of a person accused of a crime, the right not to have one’s property arbitrarily confiscated by the government, the right to be free from cruel and unusual punishment, and others.

The second amendment is currently under unrelenting attack by our current administration, with Obama leading the charge. Just two days ago, he spoke not only about the need for gun control but hinted about possible confiscation. When Obama spoke in reaction to the heinous October 1 attack on Umpqua Community College, in Oregon, he went beyond his usual calls for more gun control and suggested instead that the United States consider following the path taken by Australia and Great Britain.

In the mid-1990s Australia and Great Britain both instituted complete bans on firearm possession. And Obama referenced those bans: “We know that other countries, in response to one mass shooting, have been able to craft laws that almost eliminate mass shootings. Friends of ours, allies of ours – Great Britain, Australia, countries like ours. So we know there are ways to prevent it.”

What Obama didn’t clarify is that Australia has no constitution nor does it have a Bill of Rights. The rights of the people are not absolute. Great Britain, which also does not have a constitution, per se, does protect gun rights to some degree in its Bill of Rights of 1689. That document allowed for Protestant citizenry to “have Arms for their Defense suitable to their conditions and as allowed by law,” and restricted the right of the English Crown to have a standing army or to interfere with Protestants’ right to bear arms “when Papists were both armed and employed contrary to Law.” It also established that regulating the right to bear arms was one of the powers of Parliament and not of the monarch. Thus, the right was not absolute and it was clearly articulated as such. In fact, Sir William Blackstone wrote in his Blackstone’s Commentaries on the Laws of England (1765) about the right to have arms being auxiliary to the “natural right of resistance and self-preservation,” but subject to suitability and allowance by law.

As Mark Levin explained: “The second amendment isn’t in the Bill of Rights to protect you in your hunting rights. The second amendment isn’t there to protect you in your sports-shooting rights. The second amendment was added to the Constitution to protect you against a centralized government. The militia part of the second amendment underscores this point. The point is that the states can maintain militias to protect the states from an oppressive tyrannical central government. I don’t mean to be provocative, but that’s just history. That’s why we have the second amendment.”

What is that history? Our Founding Fathers, having just broken away from Great Britain, understood the new federal government they were ratifying might one day become just as tyrannical. If it had the authority to control citizen access to firearms, then it could disarm them, just as the British attempted to do. This would make any attempts to restore liberties futile. The second amendment was specifically included in the Bill of Rights to prevent this.

James Madison, the father of the Constitution, said in 1789 that “A well-regulated militia, composed of the body of the people, trained to arms, is the best and most natural defense of a free country.” When the Founders wrote of a “well regulated” militia, they meant that militias needed to be well-regulated through training and drilling in order to be effective in battle. It was merely common sense. This could only happen if citizens had unrestricted access to firearms.

The Second Amendment’s guarantee of an individual’s right to have and bear arms is the right which secures all other rights. The First Amendment protects the other rights by permitting the speech and the expression, and the assembly and the petition and the use of the press to call out the government when it tramples on those rights, but the Second Amendment, with its force, is able to secure them, should the government ignore the former. In other words, when the First Amendment fails, the Second is there to preserve and secure the people in their liberty.

The Preamble to the Bill of Rights expresses the States’ intention in demanding a Bill of Rights as a condition to ratification. It reads: “The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, that in order to prevent misconstruction or abuse of its powers, further declaratory and restrictive clauses should be added, which shall extend the ground of public confidence in the Government, and will best ensure the beneficent ends of its institution” According to the Preamble, the federal government is PROHIBITED from even contemplating the issue of abridging the rights guaranteed in the second amendment. The liberty rights contained in the Bill of Rights demand an ABSOLUTE BAN by the federal government action in those areas. Being that the Supreme Court has been in the business of enlarging the rights contained in those amendments (ie, privacy rights, for example, rights of criminals), we can assume that our right to have and bear arms is similarly enlarged.

Although the Bill of Rights was adopted after the Constitution was ratified, it was the absolute assurance by James Madison that he would draft a Bill of Rights and have it submitted and adopted by the First US Congress (June 8, 1788) that convinced several skeptical, and important, states to finally ratify. In other words, BUT FOR the fact that a Bill of Rights would be added to the Constitution to further protect the rights of the People and the States, the Constitution would never have been adopted and the Union, as we know it, would not have been formed. After the delegates concluded their convention in Philadelphia in September 1787, it was clear that the Constitution that had been written was not very popular (particularly with the anti-Federalists). Some very important delegates refused to even sign it and some promised to do all they could to prevent its ratification by the states. Edmund Randolph and George Mason (both of VA), Elbridge Gerry (of MA), John Lansing and Robert Yates (both of NY), and Martin Luther (of DE) all refused to sign because of a lack of Bill of Rights and a deep concern that the government created would endanger the rights of the States. Yates would go on to write some of the strongest anti-Federalist essays, under the pen name Brutus, and fellow New Yorker, Governor George Clinton, would write some as well (under the name Cato). Two of our most important Founding Fathers, Patrick Henry and Richard Henry Lee, although asked to be delegates to the Convention, declined because they were suspicious of those running the Convention (namely Madison, whom they suspected to have ambitious plans for the meeting). They believed a government stronger than the Articles would compromise the sovereignty of the States.

Indeed, it was unclear whether the Constitution would be ratified by the States. The Constitution was in deep trouble in the conventions of four states – Virginia, New York, Massachusetts, and North Carolina. They were some of the biggest states. The first three were the most important and influential of the States. Without the guarantee of a Bill of Rights, those states were not going to ratify. The formation of a “more perfect union” appeared to be in jeopardy. Even with the guarantee, the votes for ratification were by a fairly slim margin. North Carolina had rejected the Constitution outright. It was not until a Bill of Rights was added that it called another ratifying convention to take another vote.

Does anyone believe that a constitution that expressly created a government as large, bloated, concentrated, oppressive, arrogant, monopolistic, and corrupt as the one in existence today would have been drafted and produced by the delegates to the Constitutional Convention of 1787? Does anyone believe that the delegates in attendance at that convention, the great leaders of our founding generation, knowing their concerns to respect the spirit of the Revolution and to protect their state sovereignty (and yield as little sovereign power as possible), would have drafted and signed such a document? And even if such a document would have been produced at the Convention, does anyone believe a single State would have ratified it and surrendered essentially all of its sovereignty? NO WAY !! There is no way that Virginia or New York or Massachusetts or North Carolina would have ratified it. NO WAY! None of them would have ratified it.

And yet we’ve allowed the government – what it’s become – to assert, unchallenged, that whatever it does and says is the supreme law of the land. Tyranny is defined as the action of an unjust and oppressive government. For a country that defines the boundaries of government on its people through a written constitution, tyranny occurs when unconstitutional laws are forced – enforced – on the people. After all, when a government assumes powers not delegated to it, it naturally has to usurp them from their rightful depository, which in the case of the United States is the States and the People.

Our government – all three branches – continue to act to mock individual liberty and states’ rights. Certainly our president does so at every given opportunity. Our government – all three branches – continues to act to ignore and frustrate the will of the People even though a democracy is their birthright. As Daniel Webster once wrote: “It is, Sir, the people’s government, made for the people, made by the people, and answerable to the people.” (note that this quote is the forerunner to Lincoln’s famous line in the Gettysburg Address).

The federal government, which was conceived as a “government of the people, by the people, for the people,” unfortunately now only rests on two of those legs. In has failed for many years now to be a government “for the people.”

Enough is enough.

Gun Rights mark a line in the sand. That line represents a tolerance of government that absolutely cannot be crossed. If government should attempt gun control that burdens or attempt confiscation, the line will have been crossed. The Supreme Court WOULD HAVE TO IMMEDIATELY STRIKE THAT ACTION DOWN. Hell, the Supreme Court has held over and over again that any action by government that should happen to burden even ever so lightly a woman’s right to have an abortion cannot be tolerated. And an abortion actually and absolutely KILLS another human being – an innocent and helpless one. The right to an abortion is NOT mentioned in the Constitution and certainly NOT in the Bill of Rights. The right to have and bear arms is. It is addressed plainly and without condition or pre-condition in the second amendment. By applying the same rational as the Court uses to ensure women their unfettered right and access to an abortion, the government MUST NOT in any way, shape, or form burden an individual’s right to have and bear arms. The right to bear arms is rooted in the natural rights of self-defense and self-preservation. The right to have an abortion is rooted in the selfish goal of convenience.

When the government crosses that line, the Declaration of Independence tells us what the Peoples’ rights are, under the theory of social compact (which the US Constitution is):

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, —That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Should the government attempt to burden or deny the American people of their gun rights, our natural right of self-defense (even from our own government) and self-preservation (to live free, as our Creator endowed us and as nature intended) allows us to dissolve our government – that is absolve us from allegiance to it – and establish a new government that is dedicated to the protection of our God-given liberties. Personally, I believe the Constitution is perfect; it just needs verbage that makes it absolutely clear that its very terms are its limitations, there are no elastic clauses or implied powers, there is no independent legislative power attached to the General Welfare or Necessary and Proper clauses, no object expressly delegated to the legislative branch is allowed to be delegated to an un-elected group of people, Congress is expressly forbidden to tax and spend for any reason other than what is listed expressly in Article I Section 8, a provision should be included to give the states the power to audit the spending budget of the government for strict constitutionality, a provision should be added to require Congress to balance its budget every year, the Supreme Court can only offer an opinion which is subject to an appeal to the State courts, the “Wall of Separation” is removed from federal court jurisprudence, the president’s powers must be severely limited by additional language in the Constitution, presidents will no longer be allowed to issue executive orders, the bar for impeachment of a president will be lowered and in certain cases Congress MUST issue articles of impeachment and seek to remove him, consequences will be provided for in the Constitution for representatives and officials who violate their oath of office, the 14th amendment must be clarified as not intending to include the incorporation doctrine (so that the Bill of Rights once again only applies to the actions of the federal government), the 16th and 17th amendments must be repealed, an outright prohibition and a provision should be added that states that when the federal government over-steps its authority that threatens the balance of power between federal government and the states, it shall be viewed as a fatal breach of the compact that binds the states and as such they have the option of dissolving their allegiance. However, if the Constitution cannot be amended to assure that a future government remains adherent to its limits, then James Madison has set the example for us. We don’t have to “amend” the Constitution if we believe it to be seriously flawed. We can simply start from scratch.

The second paragraph of the Declaration of Independence continues:

Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security….”

Our government has been intent on enlarging and redefining its powers almost from the very beginning. It has done everything it has wanted to do to achieve the things it believed it needed to do or simply wanted to do (as in Barack Obama’s case). A government dependent on the separation of powers for proper functioning has become a government monopoly to ignore proper functioning in order to become what the British Kings used to be…. Supreme, domineering, coercive, and oppressive. The people’s government has been replaced by the government’s government. Liberty-loving Americans have been disposed to suffer long enough. Threats to take away our gun rights, however, would be the final straw.

Should Obama and his administration do more than simply talk about gun control and possible confiscation, it would be incumbent upon the states to NULLIFY any legislation or policy and then INTERPOSE for the protection and security of the People to have and bear arms. The next step, should the government fail to back down, would be to declare the federal action or actions to constitute a FATAL BREACH of the compact that brought the states together in the union and therefore the bonds of allegiance are severed and the Union creating the “United States” is thereby dissolved. The federal government would therefore have no jurisdiction except within the District of Columbia, I suppose.

The states need to act – NOW. Each state needs to adopt resolutions and enact legislation protecting the gun rights of its citizens. Those that respect the second amendment need to start attracting gun manufacturing and ammunition industry to their states. The states need to put the president and the administration, and including the federal courts, on notice of their intentions.

If the federal government intends to or attempts to violate the second amendment, the People need to know they can count on their government – that is, their state government. I hope their response will be clear and collective – WE WILL NOT COMPLY… WE WILL NULLIFY! Liberty will require such a response.

References:

Patrick Henry’s Speech, History.com. Referenced at: http://www.history.com/news/patrick-henrys-liberty-or-death-speech-240-years-ago

Congress Petitions English King to Address Grievances, History.com. Referenced at: http://www.history.com/this-day-in-history/congress-petitions-english-king-to-address-grievances

King George III Speaks to Parliament of American Rebellion, History.com. Referenced at: http://www.history.com/this-day-in-history/king-george-iii-speaks-to-parliament-of-american-rebellion

Declaration and Resolves of the First Continental Congress. Referenced at: http://avalon.law.yale.edu/18th_century/resolves.asp

“Obama Trashes the Constitution and No One Says a Damn Thing!”, Mark Levin Show. Referenced at: https://www.youtube.com/results?search_query=mark+levin+obama+trashes+the+constitution+and+no+one+says+a+thing Also referenced at: http://therightscoop.com/mark-levin-obama-trashes-the-constitution-and-nobody-says-a-damn-thing/

“Obama Goes Beyond Mere Gun Control; Hints at Confiscation,” Breitbart News, October 3, 2015. Referenced at: http://www.breitbart.com/big-government/2015/10/03/obama-goes-beyond-mere-gun-control-hints-confiscation/

“The Second Amendment: It’s Meaning and Purpose, The Tenth Amendment Center, September 22, 2014. Referenced at: http://tenthamendmentcenter.com/2014/09/22/2nd-amendment-original-meaning-and-purpose/

“Madison’s Introduction of the Bill of Rights,” usconstitution.net. Referenced at: http://www.usconstitution.net/madisonbor.html

Appendix:

The Intolerable Acts included the following:
(i) Boston Port Act, which closed the port of Boston to all colonists until damages from the Boston Tea Party were paid.
(ii) Massachusetts Government Act, which gave the British government total control of town meetings, taking all decisions out of the hands of the colonists.
(iii) Administration of Justice Act, which made British officials immune to criminal prosecution in America.
(iv) The Quartering Act, which required colonists to house and quarter British troops on demand, including in private homes as a last resort.

Obama Trashes the Constitution and No One Says a Damn Thing!

Mark Levin #2

The history of the federal government is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over the States and the People. To prove this, let facts be submitted to a candid world by famed constitutional lawyer, author, and conservative talk radio show host, Mark Levin…….

Nullification v. Article V Constitutional Convention: Where is the Honest and Open Debate?

Mark Levin (with smirk)

by Diane Rufino, January 5, 2014

When the original 13 states came together to discuss the possibility of establishing a confederacy, at the urging of Benjamin Franklin (“Join or Die”), they did so with a great deal of hope, but also a great deal of trepidation. The hope was that a federal government might be formed that could provide greater security and stability to the colonies.  The hope was that it might handle the few issues that were common to all the states but which could not be dealt with by the states individually. The fears, on the other hand, were that this government might come to gain an enormous amount of power; that this power might come to be concentrated in the hands of very few; and that the federal government as a whole might end up overreaching its authority and end up meddling in affairs that ought rightly to be left to the states and the various local governments (if not individuals themselves).

The Constitution created a limited government, which is evidenced in four obvious ways: (1) The Constitution was framed in such a way that the power of the federal government would be split between three separate branches – each acting as a check-and-balance on the power of the others; (2) The power of the federal government as a whole was limited to certain specific areas;(3) Government power structure was split between two co-equal sovereigns – the individual states and the federal government (emphasized or restated by the Tenth Amendment); and (4) A Bill of Rights (“further declaratory statements and restrictive clauses to prevent the government from misconstruing or abusing its powers..”) to put further limitations on government power.

For 200 years, this structure has been eroded, always at the hand of the federal government. After numerous overt acts of usurpation, constitutional amendments, and loose interpretations of the Constitution itself, each of the branches of government has managed to seize more power than it was ever meant to have. Now, as we see and feel most acutely, the federal government involves itself in matters that are neither federal in nature nor are subject to its jurisdiction.  It insinuates itself into virtually every aspect of public and private life, including political, economic, and social.  When we listen to a young mother in Alabama cry because the new healthcare mandate has increased her insurance premiums each month by over $100 and has presented her with a dilemma that is causing her great heartache and distress (she wants to work and do the right thing, but if she does, she can’t afford the increase in healthcare premiums, and so she is faced with the choice that puts and her family on welfare), then we understand how destructive the government has become and how far it has strayed from its intended purpose.

Those who support Nullification have put the alert out years ago. They assert that the federal government can rightfully be divested of such unconstitutional power by having the States call the government out on its conduct and refusing to enforce unconstitutional laws. But Nullification is not a term or a concept that the average American has heard before and so it has not been roundly embraced.  But it is catching on finally. In fact, support is growing exponentially. As more and more people (Thomas Woods and Mike Church, for example) and groups (The Tenth Amendment Center) educate those who are willing to listen, audiences are finding that it makes sense and is indeed a constitutional and viable remedy.

And then there are others, such as famed radio personality, Mark Levin, who advocate for a different approach.  Mr. Levin recently wrote a book entitled “The Liberty Amendments: Restoring the American Republic,” in which he proposes what he believes is the ONLY viable solution to restoring constitutional governance, which is an Article V State Convention.

In his book, Mr. Levin writes:

I undertook this project not because I believe the Constitution, as originally structured, is outdated and outmoded, thereby requiring modernization through amendments, but because of the opposite – that is, the necessity and urgency of restoring constitutional republicanism and preserving the civil society from the growing authoritarianism of a federal Leviathan.  The Statists have been successful in their century-long march to disfigure mangle the constitutional order and undo the social compact. To disclaim the Statists’ campaign and aims is to imprudently ignore the inventions and schemes hatched and promoted openly by their philosophers, experts, and academics, and the coercive application of their designs on the citizenry by a delusional governing elite. Their handiwork is omnipresent, for all to see – a centralized and consolidated government with a ubiquitous network of laws and rules actively suppressing individual initiative, self-interest, and success in the name of the greater good and on behalf of the larger community. The nation has entered an age of post-constitutional soft tyranny

Unlike the modern Statist, who defies, ignores, or rewrites the Constitution for the purpose of evasion, I propose that we, the people, take a closer look at the Constitution for our preservation.  The Constitution itself provides the means for restoring self-government and averting societal catastrophe in Article V.  Article V sets for the two processes for amending the Constitution, the second of which I have emphasized in italics:

The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two-thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three-fourths of the several States or by Conventions in three-fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress….”

Importantly, in neither case does the Article V amendment process provide for a constitutional convention. The second method, involving the direct application of two-thirds of the state legislatures for a Convention for proposing Amendments, which would thereafter also require a three-fourths ratification vote by the states, has been tried in the past but without success.  Today it sits dormant.

The fact is that Article V expressly grants state legislatures significant authority to rebalance the constitutional structure for the purpose of restoring our founding principles should the federal government shed its limitations, abandon its original purpose, and grow too powerful, as many delegates in Philadelphia and the state conventions had worried it might.   [Levin, pp. 1-13]

Levin then goes on to propose a set of eleven (11) Amendments – which he terms “Liberty Amendments” – that an Article V Convention might want to propose in order to rebalance the government (the creature created by the Constitution):  These proposed Amendments include:  (1) term limits for members of Congress; (2) the election of Senators to be returned to state legislatures; (3) term limits for Supreme Court Justices (and the opportunity for federal and state legislatures to override Supreme Court decisions with a supermajority); (4) limits on federal spending (with an eye to curbing federal debt); (5) limits on taxation; (6) limits on how much power Congress can delegate to the federal bureaucracy; (7) limiting the federal government from interfering with economic activity that does not pertain to interstate or international trade; (8) requiring the government to compensate property owners for the devaluation of property caused by regulations; (9) allowing the states to amend the constitution directly (without having to go through Congress); (10) granting states the right to overturn the laws and regulations of Congress with a supermajority;  and (11) requiring voters to produce photo identification at election booths.

Notice that Mr. Levin writes that “in neither case does the Article V amendment process provide for a constitutional convention.”  Why would he include that statement?  Both conservatives and liberals have routinely referred to an Article V “Convention for proposing Amendments” as a “Constitutional Convention” or Con-Con for well over 30 years, and likely much longer.  Is it possible that they ALL have mistakenly assumed that the words “constitutional convention” are found in Article V?  Is it possible the government itself is also mistaken?  When the Senate Subcommittee on the Constitution of the Committee on the Judiciary held a hearing on November 29, 1979, regarding the role of Congress in calling an Article V convention, the official name of the hearing as published by the Government Printing Office in a 1,372-page document was “Constitutional Convention Procedures.” This hearing was held because the number of states petitioning Congress to hold an Article V convention to propose a balanced budget amendment was rapidly approaching the necessary 34 states.

And what about the “populist lovefest,” better known as the Harvard Conference on the Constitutional Convention, held at Harvard on September 24-25, 2011, which was cosponsored by the Harvard Law School and (surprisingly) by the Tea Party Patriots as well?  Of course, Levin’s book “The Liberty Amendments” hadn’t been published yet, so the people at Harvard and the Tea Party Patriots didn’t realize that they were using a forbidden phrase, “constitutional convention,” to refer to an Article V convention.

Perhaps it’s worthwhile to take a look at that Conference and watch videos of the various panel discussions to understand why holding a constitutional convention could open Pandora’s Box.  The host of the Conference, Harvard Professor Lawrence Lessig, and the moderator of the Closing Panel, Richard Parker, both committed populists, advocated for greater democracy in our country. They believe more and more issues should be decided by popular vote.  (Parker can trace his political history back to the 1960s organization, Students for a Democratic Society).  They believe that holding an Article V constitutional convention will help get them where they want to go.

Perhaps the reason Levin wants to deny the validity of the phrase “constitutional convention” is that one of the most persuasive arguments against holding such a convention is based on the contention, the criticism, and indeed the fear that such a convention could become a “runaway” convention based either on the inherent nature of “constitutional conventions” or on what transpired at our original “Constitutional Convention” in 1787.

How is it that Mr. Levin is convinced that an Article V convention could never become a “runaway” convention?  On page 15 of his book he writes: “I was originally skeptical of amending the Constitution by the state convention process. I fretted it could turn into a runaway convention process…. However, today I am a confident and enthusiastic advocate for the process. The text of Article V makes clear that there is a serious check in place. Whether the product of Congress or a convention, a proposed amendment has no effect at all unless ‘ratified by the legislatures of three fourths of the several States or by Conventions in three fourths thereof…’  This should extinguish anxiety that the state convention process could hijack the Constitution.”

So, in this excerpt, Levin admits that he shares the concerns of others that an Article V convention could turn into a “runaway convention.”  Yet he is confident that he has overcome those concerns with his belief that “Article V makes clear that there is a serious check in place,” namely the requirement of ratification of amendments by three-fourths of the states. There are several reasons why Levin should not be so assured that this is a “serious check” in place to stop a runaway convention.  Larry Greenley points these reasons out in his article, “Levin’s Risky Proposal: A Constitutional Convention”:

First, the “ratification by three-fourths of the States” requirement of Article V already has failed to prevent undesirable amendments from being ratified. Consider the 16th Amendment (the federal income tax), the 17th Amendment (direct election of senators), and the 18th Amendment (prohibition). All three were ratified by at least three-fourths of the states, but most constitutionalists would likely agree that all three were bad amendments and should not have been ratified. In particular, many constitutionalists think that changing the method of choosing U.S. senators from appointment by state legislatures to direct election by the voters in each state as provided by the 17th Amendment has been extremely damaging to our constitutional republic. James Madison spoke ever so strongly for this important design feature at the Virginia Ratifying Convention, in his rebuttal of Patrick Henry who accused the Constitution of potentially granting too much power to the federal government.  “The deliberations of the members of the Federal House of Representatives, will be directed to the interests of the people of America. As to the other branch, the Senators will be appointed by the State Legislatures, and secures AN ABSOLUTE DEPENDENCE OF THE FORMER ON THE LATTER.”  The Senate was a direct “federal” element within the very design of the federal government. Its power to refuse to approve a legislative act of the House that is against the reserved powers and interests of States is precisely what the doctrine of Nullification provides.

Second, it is hard to predict just how much pressure the American public can put on state legislators or state convention delegates to get some future undesirable amendment or amendments ratified by the three-fourths rule. We all know what happens when big money and special interests groups send out their tentacles. When big money, special interest groups, and political power pour in to try to influence the delegate-selection process and the convention business itself, the people lose their voice.  Experience has shown that we can’t trust public servants once they go behind closed doors. We saw what happened with the healthcare bill.

Third, it is quite possible that an Article V constitutional convention would specify some new method of ratification for its proposed amendments. After all, our original Constitutional Convention in 1787, an important precedent for any future constitutional convention, changed the ratification procedure for the new Constitution from the unanimous approval of all 13 state legislatures required by the Articles of Confederation to the approval by 9 state conventions in Article VII of the new Constitution.

But for those who are not quite comforted by Levin’s argument that Article V provides the very means to control its convention, he offers still another method to ease our concerns about a runaway convention. On page 16, he quotes from Robert G. Natelson, a former professor of law at the University of Montana: “[An Article V] convention for proposing amendments is a federal convention; it is a creature of the states or, more specifically, of the state legislatures. And it is a limited-purpose convention. It is not designed to set up an entirely new constitution or a new form of government.”  Too many others, including notable intellectuals, constitutional scholars, and even former US Supreme Court justices beg to disagree on this point.

Many constitutionalists will also agree that Levin is encouraging Americans to play with fire by promoting a constitutional convention. Just because the Constitution authorizes Article V conventions to amend the Constitution doesn’t mean that it would be wise at this time in our nation’s history to call one.

While pro-Article V convention enthusiasts tell us that this is a great time for an Article V convention because the Republican Party controls 26 of the 50 state legislatures (the Democrats control 18, five are split, and one is non-partisan), and therefore could surely block the ratification of any harmful amendments proposed by an Article V convention, they are omitting from this analysis that very many of the Republican state legislators are not constitutionalists, and could end up in alliance with Democrats to ratify some harmful amendments. Not to mention the likelihood that constitutionalists would be in the minority at the convention for proposing amendments itself.

There is no doubt that Mr. Levin has done his homework with respect to the Article V Convention.  But it is clear from the strong and sometimes rabid response to his book that he has not made the case strong enough to quell the legitimate fears of many who believe such a Convention is akin to opening a can of worms. I use the expression because it means: “something that (often unexpectedly) sets in motion that which has unanticipated and wide-reaching consequences.”  Or as TN Tenth Amendment Center leader Michael Lotfi puts it: “An Article V constitutional convention of the states is not the right answer; it is the bullet to a loaded revolver pointed at the Constitution.”  Knowing that the Nullification movement is gaining momentum, Levin made it a point, in promoting his book, to try to discredit the “rightful remedy” of Jefferson and the “duty of the states” approach of Madison.  He did not do it in a civil, educated manner but rather resorted to referring to Nullification as “idiocy” and Nullifers as “kooks.”  I imagine that if Thomas Jefferson were listening to Mark Levin’s assertion of how to address a government that willingly and defiantly passes unconstitutional laws, he would think he was a “kook.”

I would also think that Jefferson would conclude that people who think narrowly, as Levin does in his book and in his commentary to promote his book (including the rejection of nullification) are incapable of saving a republic that is on the brink of imploding.

Thomas Jefferson and James Madison

The only object upon which the Constitution acts is the federal government. It is its playbook; it defines its jurisdiction. It is also its restraining order. Yet each time the government did not wish to be confined by it, it used one of the three branches (most notably the Supreme Court) to reinterpret it and enlarge government powers, regardless that the ONLY way the government can rightfully be altered is by amendments (Article V). The point is that the government has refused to adhere to the limitations set forth in the Constitution…. the limitations that the States demanded and relied upon when debating and deciding whether to relinquish some of their sovereign power and ratify the compact that formed the government.  So here is Levin’s solution:  Even though the Constitution clearly defines the government’s powers and sets forth limitations, and even though the government has repeatedly and systematically refused to adhere to those limitations, he believes the only way to limit the government going forward is to make the States go through a series of hurdles (Article V’s requirements) in order to try to add a new set of restrictive amendments.  Levin himself has pointed out that such a State Convention may not successfully happen and even if it does, it may take up to 20 years or more add such amendments.  We can predict what will happen.  The government will ignore them or quickly find a way to erode them or get around them.  There is no guarantee that the amendments will restore the proper balance of power in government.  According to Levin, the parties who have been the victims of the government’s usurpations, the States and the People themselves (the rightful depositories or reservations of sovereign power) – have no other recourse or remedy except to take their slim chances with an Article V State Convention, a remedy that has NEVER been used before and hence has no proven record of success.  In other words, the States and the People MUST abide strictly by the provisions of the Constitution when the federal government has never done so.  Levin stands by his proposition even though the people of the states already have the extra-constitutional right to convene a constitutional convention by virtue of the Declaration of Independence. That’s exactly what the Philadelphia Convention was…  an exercise of this right (which is referred to as the Theory of Popular Sovereignty), because the Articles of Confederation created a so-called “perpetual Union.”

Article XIII of the Articles read: “Every State shall abide by the determination of the United States in Congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State…..  And that the Articles thereof shall be inviolably observed by the States we respectively represent, and that the Union shall be perpetual.”

The Theory of Popular Sovereignty wasn’t just the design of men like Thomas Jefferson (VA), John Adams (MA), Benjamin Franklin (PA), Roger Sherman (CT) and Robert R. Livingston (NY), the committee appointed on June 11, 1776 by the Continental Congress to draft the Declaration of Independence, it was indeed a consensus notion among the whole of our Founding Fathers. Consider for example what Edmund Pendleton, president of the Virginia Ratifying Convention, said to the delegates on June 5, 1788:

We, the people, possessing all power, form a government, such as we think will secure happiness: and suppose, in adopting this plan, we should be mistaken in the end; where is the cause of alarm on that quarter? In the same plan we point out an easy and quiet method of reforming what may be found amiss. No, but, say gentlemen, we have put the introduction of that method in the hands of our servants, who will interrupt it from motives of self-interest. What then?… Who shall dare to resist the people? No, we will assemble in Convention; wholly recall our delegated powers, or reform them so as to prevent such abuse; and punish those servants who have perverted powers, designed for our happiness, to their own emolument.

Although there are some ambiguities in this passage, Pendleton appears to be assuring the delegates that if the Constitution turned out not to secure happiness for Americans, then it could be reformed by the “easy and quiet” methods of Article V.  However, if the Article V process were to be subverted by “our servants,” the state and federal legislators, then We the People (the sovereign people) would assemble in convention, wholly recall and reform the delegated powers of the Constitution, and punish the offending servants.

Former US Supreme Court Justice Arthur Goldberg addressed the topic of a Constitutional Convention with skeptism back in 1986.  He wrote:

As we look forward to celebrating the bicentennial of the Constitution, a few people have asked, “Why not another constitutional convention?”

I would respond by saying that one of the most serious problems Article V poses is a runaway convention.  There is no enforceable mechanism to prevent a convention from reporting out wholesale changes to our Constitution and Bill of Rights.  Moreover, the absence of any mechanism to ensure representative selection of delegates could put a runaway convention at the hands of single-issue groups whose self-interest may be contrary to our national well-being.
A constitutional convention could lead to sharp confrontations between Congress and the states. For example, Congress may frustrate the states by treating some state convention applications as invalid, or by insisting on particular parliamentary rules for a convention, or by mandating a restricted convention agenda. If a convention did run away, Congress might decline to forward to the states for ratification those proposed amendments not within the convention’s original mandate.

History has established that the Philadelphia Convention was a success, but it cannot be denied that it broke every restraint intended to limit its power and agenda.  Logic therefore compels one conclusion: Any claim that the Congress could, by statute, limit a convention’s agenda is pure speculation, and any attempt at limiting the agenda would almost certainly be unenforceable.  It would create a sense of security where none exists, and it would project a false image of unity.

Opposition to a constitutional convention at this point in our history does not indicate a distrust of the American public, but in fact recognizes the potential for mischief. We have all read about the various plans being considered for Constitutional change. Could this nation tolerate the simultaneous consideration of a parliamentary system, returning to the gold standard, gun control, ERA, school prayer, abortion vs. right to life and anti-public interest laws?

As individuals, we may well disagree on the merits of particular issues that would likely be proposed as amendments to the Constitution; however, it is my firm belief that no single issue or combination of issues is so important as to warrant jeopardizing our constitutional system of governance at this point of our history, particularly since Congress and the Supreme Court are empowered to deal with these matters.

James Madison, the father of our Constitution, recognized the perils inherent in a second constitutional convention when he said an Article V national convention would “give greater agitation to the public mind; an election into it would be courted by the most violent partisans on both sides; it would probably consist of the most heterogeneous characters; would be the very focus of that flame which has already heated too many men of all parties; would no doubt contain individuals of insidious views, who under the mask of seeking alterations popular in some parts but inadmissible in other parts of the Union might have a dangerous opportunity of sapping the very foundations of the fabric. Under all of these circumstances, it seems scarcely to be presumable that the deliberations of the body could be conducted in harmony, or terminate in the general good.  Having witnessed the difficulties and dangers experienced by the first convention which assembled under every propitious (promising) circumstance, I would tremble for the result of a second.”
Let’s turn away from this risky business of a convention, and focus on the enduring inspiration of our Constitution.

The bicentennial should be an occasion of celebrating that magnificent document. It is our basic law; our inspiration and hope, the opinion of our minds and spirit; it is our defense and protection, our teacher and our continuous example in the quest for equality, dignity and opportunity for all people in this nation. It is an instrument of practical and viable government and a declaration of faith — faith in the spirit of liberty and freedom.

Arthur Goldberg

Constitutional attorney, Publius Huldah, also rejects the Article V Convention as the effective means to restore our country to its intended constitutional republic.  She takes the position that as the rightful depositories of government power are the Individuals and resistance to tyranny is not only a natural right but a duty. She therefore supports the rightful remedy of Nullification to enforce obedience to the Constitution.  She writes, in her article Mark Levin Refuted: Keep the Feds in Check with Nullification, Not Amendments!, that the Oath of Office, addressed in Article VI, last clause, requires both federal  and state officials to support and defend the Constitution.  This requires them to refuse to submit to – ie, to nullify! – acts of the federal government which violate the Constitution.  “This is how they “support” the Constitution!”  As to Mr. Levin’s assertion that an Article V Convention is the proper, safe, and legal mechanism to restore constitutional limitations to a government historically unwilling to abide by them, she argues that while he admitted (on pg. 15 of the book) that the process has the potential to turn into a “runaway” convention, he never successfully explained why Article V can effectively prevent that from happening.

Publius writes: “The claims of the nullification deniers have been proven to be false.  To persist in those claims – or to do as Levin seems to do and ignore the remedy of nullification – is intellectually and morally indefensible.  Instead, they continue to tell us that what we need is a “convention of the States” to propose amendments to the Constitution, and that this is the only way out. They tell us, the only way to deal with a federal government which consistently ignores and tramples over the Constitution is to amend the Constitution!   Do you see how silly that is?”

Publius Huldah

Michael Lotfi, the Associate Director of the Tennessee Tenth Amendment Center, wrote an excellent article comparing the Article V State Convention remedy of Mark Levin to Nullification, the remedy of Thomas Jefferson and James Madison (collectively, the authors of all our foundational documents, except the Articles of Confederation).  The article is entitled: Nullification vs. Article V Constitutional Convention: Why Levin is Wrong.  (See prior post on this NC TAC site).  He wrote: “Calling for a convention to amend the Constitution with amendments shows absence in sound judgment.”  Further, he wrote: “Levin proposes an Article V constitutional convention of the states as salvation. Not only is an Article V constitutional convention not the right answer, it is the bullet to a loaded revolver pointed at the Constitution.”

Lotfi talks about some of the unconstitutional laws, agencies, and actions that the government has imposed over the years – “the NSA, NDAA, ObamaCare, the Patriot Act, EPA, DOE, every war since the 1940s, federal gun laws, etc.  These laws and agencies all fly in the face of the Second, Fourth, Fifth, Sixth, Ninth, and Tenth Amendments.”  He asks how a process that potentially may take as long as 20 years but more likely won’t work at all will address these gross usurpations.  We must not forget that these amendments were adopted as EXPRESS limitations on the federal government.  The Preamble to the Bill of Rights explains it best: “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 ensure the beneficent ends of its institution.”

How is it that the government can find a way to limit the effect of the first ten amendments when those amendments were intended to limit the government and keep those particular objects OFF LIMITS with respect to the federal government?

Mr. Lotfi gives a wonderful explanation of the legitimacy of Nullification.  He writes:

The powers delegated to Congress are few and defined. The Tenth Amendment provides explicit validation for nullification, “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” (emphasis added).

In regards to nullification, does the Constitution delegate this power to the federal government? It obviously does not. Does the Constitution explicitly prohibit nullification? It does not. It can now easily be concluded that nullification is a power reserved for the people of their respective states.

The Ninth Amendment expounds even further the right to nullification. “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Jefferson explained that nullification was a natural right belonging to the people and their respective states. Because the Constitution does not expressly prohibit nullification, the federal government cannot deny or disparage this natural right of the people.

Just as so many intellectuals have requested that Mark Levin stop the name-calling and have an intellectual, honest, and dignified debate on the topic of Nullification, Mr. Lotfi has done the same.  He ends his article with this message: “Levin is perhaps the most appreciated and admired political talk show host in America. Rightfully so, he has earned his accolades. However, with such clout comes an incredible responsibility to not only seek truth, but to display the humility and courage to admit when you are wrong.”

Michael Lotfi

Mr. Lotfi hit the nail on the head in his article with respect to Nullification. He addressed what I believe is the most powerful of the opponent’s arguments – Madison’s remarks following the Nullification crisis of 1832. Most are too uneducated or too shallow in their willingness to read more than a page of history and so they just don’t get that Madison was trying to explain that the particular situation wasn’t one that can be rightfully addressed by nullification. Nullification, at its core, requires an act by the federal government that exceeds the powers delegated to it under the Constitution. Congress rightfully has the power to legislate regarding tariffs. The Tariffs of 1828 and 1832 (tariffs of abomination) were within Congress’s rightful exercise of power. And so nullification was not the proper or rightful remedy to challenge it or to assert as the basis for non-compliance. The real argument was the one that Calhoun originally made, which rested on the Compact Nature of the States. He claimed that when the States came together and drafted the Constitution and then ratified it, they were guided by the concept of social compact. They agreed to give up some of their sovereign power (a “burden,” in contract terms) in return for the understanding that the federal government so created (the creature) would be their “common agent” and would serve them equally (the “benefit,” in contract terms). Even James Madison, and many of our other founders, acknowledged the compact nature of the Constitution. At the VA Ratifying Convention, Madison prefaced his speech with these words:  “A Federal Government is formed for the PROTECTION of its individual members.” Calhoun argued that under the compact nature of the Constitution, the common or federal government was supposed to serve all the states equally. The tariff, as you know, benefitted the North exclusively, at great detriment to the South. This unequal treatment of the Southern states is what really led to the secession of the Southern states – not the issue of slavery. Lincoln’s election simply meant “more of the same.”

Again, as Publius pointed out in her article Mark Levin Refuted: “The claims of the nullification deniers have been proven to be false.”  The truth, as she brilliantly explains, is that resistance to tyranny is a natural right (the natural right to protect one’s sovereign rights) and Nullification is the rightful tool of resistance.  Just as resistance is a natural right, nullification is the natural remedy.

Publius is a scholar and is brilliant.  Mark Levin is a scholar and is brilliant, as well.  The most brilliant men of all are Thomas Jefferson and James Madison, and if you have any doubt of that, then you are all hypocrites for living under the very free society they secured for you. The difference between scholars like Publius and Mr. Levin is which view point they choose to endorse, given their extensive knowledge and understanding. Publius is a scholar of history and of original intent. She understands that the Constitution is not a stand-alone document but is grounded in the principles outlined in the Declaration of Independence and in the doctrine of Social Compact.  She is an attorney.  Mark Levin is also an attorney and understands history. Unfortunately, he has chosen to ignore some of the background that rounds out the understanding of our founding documents.  As we are all aware, there are those who support Mark Levin and those who support those who endorse Nullification.  I am troubled that someone as brilliant as Mark Levin can so cavalierly disregard Nullification and resort to the unsophisticated approach of calling those not in his camp a bunch of kooks. This truly troubles me because I believe scholars should be above that and try to promote their points of view through robust discussion and debate. That’s how our Founding Fathers did it. And that was the climate at the Philadelphia Convention which produced the final design of our federal government. The one area that debate and discussion could not produce the just result was with respect to slavery.  Georgia and South Carolina simply refused to go along if the concession wasn’t made.  Personally, I don’t think one remedy is exclusive over the other; I think the sound approach is finding a way to REPEAL any amendment that increases the power of the federal government and destroys its original design (such as the Sixteenth, Seventeenth, and parts of the Fourteenth amendments) while using NULLIFICATION to frustrate the enforcement of any unconstitutional federal law, policy, or court decision. I think the sound approach is recognizing the POWER that both approaches offer in limiting the power and reach of the federal government (outside its constitutional limits) and using them BOTH for the effective transfer of power back to the People. That’s what it’s all about, right??

And so, with this article, I want to ask all of you to please put the good of the country first and please find the untainted authorities to educate yourselves on Nullification. Jefferson and Madison are good starts – Read the Kentucky Resolutions of 1798 and 1799 and the Virginia Resolution of 1798, as well as Madison’s Virginia’s Report of 1800, but most importantly, read the circumstances under which Jefferson and Madison sought to re-assert the compact/founding principles of nullification…. the government was starting to trample on our Bill of Rights!!)  Nullification is a good way to hold the federal government at bay while we figure out the best ways to divest the federal government of its liberty-killing powers. There are valid criticisms of an Article V Convention, and I advance that position with the others.  If Mark Levin can PROMISE ABSOLUTELY that a group of state delegates can produce amendments that are clearly limited to transparent goals and which will LIMIT the government (and not in fact enlarge its powers, as some states seem inclined to do), then perhaps we should continue our discussion and debate on the Convention. But I don’t think he can do so.

As Joe Wolveton II, JD writes: “Enforcing the Constitution and demanding that states stand up to their would-be federal overlords accomplishes the same goal as Levin’s proposed con-con without putting the Constitution so close to the shredder that an Article V convention could become.”

Mark Levin may have personal popularity, powerful friends in the media, the ability to shut down much of the criticism of his book, and a powerful bully pulpit in his radio show and his guest appearances on the top news outlet, but he doesn’t have the same understanding of liberty and its preservation as Thomas Jefferson, James Madison, and our other Founding Fathers had.

Nullification must continue not only to be the remedy of choice, but of right.

“No matter the soothing words and the slate of scholars standing with Levin,” Wolverton emphasizes: “the convention they’re calling for would be beyond the control of the people or their representatives and could result in the proposal by the assembled delegates of potentially fatal and irreversible alterations to our Constitution that could very well end up being ratified.”

 

References:

Mark Levin, The Liberty Amendments: Restoring the American Republic, New York, N.Y.: Threshold Editions, 2013, 272 pages, hardcover.

Arthur Goldberg (former US Supreme Court Justice), “Steer Clear of Constitutional Convention,” Miami Herald, September 14, 1986.  http://www.governamerica.com/issues/domestic-issues/21-constitutional-convention?start=10

Joe Wolverton II, JD, “Levin, Limbaugh, Hannity Calling for Con-Con, “ The New American, August 22, 2013.  http://www.governamerica.com/issues/domestic-issues/21-constitutional-convention?start=10

Larry Greenley, “Levin’s Risky Proposal: A Constitutional Convention,” The New American,  October 27, 2013.  http://www.governamerica.com/issues/domestic-issues/21-constitutional-convention?start=10

Michael Lotfi, “Nullification vs. Article V Constitutional Convention: Why Levin is Wrong,” The Washington Times, December 27, 2013.  http://communities.washingtontimes.com/neighborhood/american-millennial/2013/dec/27/nullification-vs-article-v-constitutional-conventi/

Publius Huldah, “Mark Levin Refuted: Keep the Feds in Check with Nullification, Not Amendments!”.  https://publiushuldah.wordpress.com/2013/09/15/mark-levin-refuted-keep-the-feds-in-check-with-nullification-not-amendments/