In drafting, and ratifying the constitution, the several stated created a new form of government and granted it certain limited powers to manage the affairs of the union as a whole. It was never their intent that this newly created system of government would micromanage all aspects of the peoples lives.
Prior to the constitution, Thomas Jefferson drafted the Declaration of Independence. From that document I quote,
“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.”
Liberty seems to be one of those words which people claim to understand, yet in reality they have no idea what it truly means. Thomas Jefferson defined it as,
“Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add 'within the limits of the law' because law is often but the tyrant's will, and always so when it violates the rights of the individual. ”
Hugo Adam Bedau went even further by saying,
“Government should allow persons to engage in whatever conduct they want to, no matter how deviant or abnormal it may be, so long as (a) they know what they are doing, (b) they consent to it, and ( c) no one-- at least no one other than the participants--is harmed by it.”
That my friends is liberty, the ability to do whatever you want, as long as your actions do not harm others, or restrict them from enjoying the ability to do so as well. Now, applying those definitions, and considering all the laws and regulations which our government has put into place to manage your lives, can you still say that Americans enjoy the unalienable right of liberty?
Yet, continuing just a bit further in the Declaration of Independence, Jefferson states,
“That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…”
Our government seems to think that it is omnipotent, that it can do whatever it wishes as long as a majority of the people are in favor of their actions. That is not the case. The constitution clearly defines what powers the government has, and the government is bound by oath to restrict their actions within the confines of those powers.
In 1884, the Supreme Court, in the case of Julliard vs. Greenman, 110 U.S. 451, ruled that,
“There is no such thing as power of inherent Sovereignty in the government of the United States. In this country sovereignty resides in the People, and Congress can exercise no power which they have not, by their Constitution entrusted to it; All else is withheld.”
Before I go any further, I suppose I should explain what exactly our constitution is. I have heard the terms, contract and charter tossed around when it comes to describing what our constitution is.
Black’s Dictionary of Law defines a constitution as, “The organic and fundamental law of a nation or state, which may be written or unwritten, establishing the character and conception of its government, laying the basic principles to which its internal life is to conformed, organizing the government, and regulating, distributing, and limiting the functions of its different departments, and prescribing the extent and manner of the exercise of sovereign powers. A charter of government deriving its whole authority from the governed. The written instrument agreed upon by the people of the Union or a particular states, as the absolute rule of action and decision for all departments and officers of the government in respect to all the points covered by it, which must control until it shall be changed by the authority which established it.”
From the same source a charter is defined as, “An instrument emanating from the sovereign power, in the nature of a grant, either to the whole nation, or to a class or portion of the people, to a corporation, or to a colony or dependency, assuring to them certain rights, liberties, or powers. Such was the "Great Charter" or "Magna Charta" and such also were the charters granted to certain of the English colonies in America.
A charter differs from a constitution, in that the former is granted by the sovereign, while the latter is established by the people themselves.”
While a contract is described as, “An agreement between two or more persons which creates an obligation to do or not to do a particular thing. Its essentials are competent parties, subject matter, a legal consideration, mutuality of agreement, and mutuality of obligation.”
Let’s begin by saying our constitution is by no means a contract. I never affixed my name to it, nor did I agree to grant anyone, especially some elected official, the right to pass laws which restrict my rights.
If it were a contract, it would be null and void, as our government has violated the terms of it by passing untold numbers of laws which they had no authority to pass.
The term charter also does not apply as it is something granted from the sovereign to the people, while a constitution is something established by the people themselves.
This principle was affirmed by the courts in the case of Yick Wo vs. Hopkins and Woo Lee vs. Hopkins, 118 U.S. 356 “...While sovereign powers are delegated to the agencies of government, sovereignty itself remains with the People, by who and for whom, all government exists and acts.”
The ultimate power, under our constitution, resides in the people. Our constitution grants government certain powers by which they can act on our behalf. Yet the moment they step outside those specifically enumerated powers, their acts become null and void, and not binding upon the people.
In terms of legality, there are things which are known as maxims. According to Black’s Law Dictionary, 3rd Edition, a maxim is defined as, “An established principle of proposition. A principle of law universally admitted as being a correct statement of the law, or as agreeable to reason.” These maxims are commonly accepted as truths that are not questioned.
According to the legal encyclopedia American Jurisprudence, one of those maxims states, “The general rule is that an unconstitutional statute, though having the form and the name of law, is in reality no law, but is wholly void and ineffective for any purpose since unconstitutionality dates from the time of its enactment and not merely from the date of the decision so branding it; an unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed ... An unconstitutional law is void.” (16 Am. Jur. 2d, Sec. 178)
As of late there has been much made by the patriot movement regarding certain states which are attempting to utilize the 10th Amendment to stave off any further federal encroachments of their rights.
While this is a move in the right direction, I still see some problems with this approach. I wonder, how guilty are the states themselves of violating our rights? As the safeguarding of our rights is the purpose for which governments were created, how guilty are the states themselves when it comes to infringing upon those rights?
In the case of Miller vs. U.S. 307 U.S. 175, 178-79, the courts ruled that “The claim and exercise of a Constitutional Right cannot . . . be converted into a crime.” In Hurtado vs. California, 110 U.S. 516, the court ruled that “The State cannot diminish the rights of the people.” And in Murdock vs. Pennsylvania, 319 U.S. 105, the court ruled, “A state may not impose a charge for the enjoyment of a right granted by the federal constitution.”
I don’t know about everyone who reads my articles, but for me, living in California, my state is certainly guilty of violating my rights and liberty. The Declaration of Independence states that our rights are unalienable. If you look up unalienable you will find inalienable, which means, “impossible to take away: not able to be transferred or taken away, for example, because of being protected by law.”
The courts have also upheld this principle in numerous rulings. From the case of City of Dallas v Mitchell we read, “The rights of the individuals are restricted only to the extent that they have been voluntarily surrendered by the citizenship to the agencies of government.”
In Miranda vs. Arizona we find, “Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.” Finally, from Westbrook v Mihaly I quote, “Constitutional rights may not be infringed simply because the majority of the people choose that they be.”
The preservation of, what were considered natural rights, was of such great importance that enough states refused to ratify the constitution unless some provisions were made for preserving them. That is how we came to have the Bill of Rights.
Yet over time, government, both federal and local, has infringed upon these rights. Infringe is another of those words that I don’t think people truly understand. Let’s say you have a piece of property in which your front yard measures 65 feet wide by 35 feet deep. Now say your neighbor builds a fence and you discover that your front yard is now only 64 by 35. Your neighbor has infringed upon your property by one foot.
You see, infringement does not mean the sudden loss of something, it means the loss through small, incremental encroachments. And when it comes to rights, we have to remember that no matter how large a majority believe it Is in our bests interest to infringe upon certain rights, as proven in the case of Westbrook v Mihaly, they have no right to do so.
I could go on for days about all the various infringements of our rights, but instead I would like to spend just a few moments to talk about the right to keep and bear arms.
This right is one of those which are clearly defined by the Bill of Rights. As previously shown, numerous court cases prove that a right is something which cannot be legislated upon to infringe, restrict or do away with. Yet the Second Amendment has come under attack at both the federal and state levels.
This is what Blacks Law Dictionary has to say about the term bear arms, “
Bear Arms The Second Amendment, U.S. Constitution, provides that the "right of the people to bear arms, shall not be infringed." This right has been restricted however by state and federal laws regulating the transportation, sale, use, and possession of weapons.”
You see, from a legal perspective, the term arms, among other things, means weapons. If you were to look up the word arms in a legal dictionary you would not find any limitations as to type, caliber, or single shot or automatic fire. Arms are merely weapons. Therefore the Second Amendment was designed to protect our right to carry weapons, of any type. Common sense would dictate that people don’t walk the streets carrying anti tank missiles or RPG’s, but the right to bear arms cannot be read to mean that a person, who is peaceable, form carrying the weapon of their choice.
In fact, from the Report of the Subcommittee on the Constitution of the Committee on the Judiciary, we read, “The conclusion is thus inescapable that the history, concept, and wording of the Second Amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half-century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner.”
Therefore, why do I as a person who resides in the state of California, have to take a test to prove that I am responsible enough to purchase a firearm? Why do I need to obtain permission from the government before I am allowed to obtain a concealed weapons permit? Why am I restricted from buying certain types of firearms when these same firearms are perfectly legal in other states? From a purely legal perspective, my right to keep and bear HAS been infringed, of that there can be no doubt.
Once government determines that it can impose restrictions, or fees for your ability to exercise a right, it has ceased to be a right and has become a privilege. Let that sink in for a moment. It is important because a privilege is something which those who grant it can, at any time, take away, while a right is something which cannot be taken away.
The question then remains, what can we do to protect and defend our rights? As the states are, more often than not, just as guilty of violating our rights in some form or another, are we to leave it up to them to safeguard these rights for us? Or are we as individuals going to stand up and say that, “No, you will not impose this unconstitutional violation of my rights upon me.”
If one values their rights, one must ponder this question its implications with a great deal of seriousness. Let me explain why. Say I decide I no longer wish to pay my property taxes. I own my home, having paid off the mortgage years ago. Yet if I refuse to pay my property tax I can be fined, jailed, and above all, lose my home. If I refuse to cooperate, I might even be killed in a standoff with the local authorities.
If I decide I wish to exercise my right to keep and bear arms, and purchase automatic weapons, the federal government, by way of their henchmen, the FBI or the ATF, may come after me in full military gear and kill me for violating what they say is law.
You see, standing up for your rights may come at a cost, and a dear one at that. Our founders knew that. When those 56 men affixed their names to the Declaration of Independence, they knew that they had just made themselves enemies of their existing government. Their lives were in peril, but they believed in the principles stated in that document, that our rights come from our Creator, and that they cannot be taken from us by a tyrannical government.
Many may read my writings and find them entertaining, or agree with me to a point. Yet how many of them would be willing to stand up for their rights when facing the local SWAT team, or an armed contingent of the FBI or ATF?
There is no hope in the ballot box as long as a majority of the people in this country think that by flipping back and forth between Republicans and Democrats we can restore our rights.
There also is not much hope when a majority of the people do not really care that much about how much their rights have been infringed upon. It is only when people, in large numbers, tell their government that they will no longer abide by any more infringements of their rights, can change come about. But that change will come at a cost. Just as in 1776 when the British fought to retain control over the colonies, any fight to restore our rights will come at the cost of many lives, and the outcome is not certain. Yet as Patrick Henry said, “Give me liberty, or give me death.”
Neal Ross, Neal’s Soapbox, is a 13-year USAF veteran. Neal loves his country and is saddened by what he sees happening to it. Neal writes so that others might begin to realize how far our country has strayed from the principles upon which it was founded.
Neal can be reached at bonsai@syix.com
