Does anyone really believe that the Founders would ever give more power to the government, than rights to the people? Does anyone really believe that the Judiciary has the lawful ability to carve up the Constitution into pieces?
In planning this article, the murder of police officers in Dallas occurred. I thought of holding off to honor the victims first, but then the Obama Administration immediately began the call for more illegal gun laws, and I realized it was more important than ever to speak out. This one court case highlights everything that our government is doing wrong in terms of our gun rights. Creating more classes of disarmed victims is not going to stop criminals who don’t respect any laws. I hope the information here will serve you in the huge gun debate that is surging through this entire election.
Recently the U.S. 5th Circuit Court of Appeals ruled that “machine guns are not protected arms under the Second Amendment.” What utter and complete, constitutionally contemptuous, nonsense. All small arms are protected by the Second Amendment. What is not protected, is how you use them. That difference, is key to the whole issue. Here is the case file.
The plaintiff, Jay Hollis, sued the federal government in District Court, because the Bureau of Alcohol, Tobacco and Firearms, (ATF) rejected an application from him to make an AR-15 into a fully-automatic M-16, which Hollis said was allowed under the Second Amendment. (Ironically what is not allowed under the Second Amendment is the ATF.) The Circuit Court upheld the District Court rejection on appeal, basing their decision on the 1986 statute making possession of machine guns unlawful, as well as restrictions from the 1968 Gun Control Act and the National Firearms Act of 1934, both of which greatly restrict fully automatic rifles, and all three of which are enforced by the ATF. This is all very normal, and all completely unconstitutional.
One problem is that individuals, lawyers, and pro-gun groups, try to convince various courts ways in which the federal gun laws don’t apply to an individual case, or what they want to do is constitutional despite the laws. What they really need to do is challenge the constitutionality of any court using these laws to decide anything. The Supreme Law of the Land is the Constitution, and the Supreme Gun Law is the Second Amendment. Any law that in any way “infringes,” or touches the absolute outside edge, (that’s what the fringe is) of the right to own and carry firearms, is unconstitutional. Since each of these laws, from 1934 to 1986, all blatantly infringe on the Second Amendment, they are unconstitutional, and being inferior in standing to the Second Amendment are rendered moot by it. So for the 5th Circuit to base their decision on illegal laws, and agency actions from those laws, is their first mistake. That alone is enough to render their decision moot.
The real problem is why any court feels they can decide whether any law is constitutional or not. That is called “judicial review,” and it was specifically left out of Article 3 of the Constitution, which governs the federal courts particularly the Supreme Court. Judicial review is unconstitutional, because it is a usurped not a delegated power, and because it allows the judiciary to interpret, rule on, or effectively overrule the Constitution. That is why such power was never delegated by the states, to the federal government, when they ratified the Constitution. This is why it is the states, Congress, and the people directly through jury nullification and through representation, who can rule on the constitutionality of federal laws. Having usurped judicial review, the courts have also ruled out any challenge to that authority. So until the judiciary is stopped, they are going to continue to use, and abuse, this assumed power. No part of the government can self validate their own authority without any challenge, because there is no check or balance, which is why no such authority exists. No judicial review authority over state law exists either. Therefore, any court basing their opinion on laws they have decided are constitutional through judicial review is illegal, if those laws conflict with the Constitution. That was the 5th Circuit’s second mistake, because they used infringing federal gun laws to infringe on the rights of Hollis, and therefore on all gun owners. For further reading, check here.
The third mistake of the 5th Circuit was categorically stating that the Second Amendment doesn’t protect “machine guns” or fully automatic firearms. Well, of course it does. Anyone who can read and knows the definition of “infringed” knows that. There are no qualifications to the Second Amendment; no limitations listed; no separate or special categories included. The Second Amendment is profoundly simple. Citizens can form organized and well equipped military groups, known as militias, in order to maintain a state, or condition, of freedom. In order to exercise that right, the government is prohibited from even touching the right of individuals to own and carry firearms. Any law or regulation to the contrary is unconstitutional, and therefore doesn’t legally exist. It is the constant enforcement and use of non-legitimate laws that is the danger and crime of gun control, and it happens every day. Realizing all this would change how our gun groups approach an illegally operating judiciary.
From courts, to politicians, to anti-gun rights groups, they all make the claim that rights are subject to “reasonable restrictions.” But the whole point of rights is that there are no restrictions within the context of the right. That’s what defines a right. Which is why all guns within the context of the Second Amendment are covered, not just the politically correct ones of the day. All rights are also individual. Trying to make a right “collective” regulates the right, and therefore destroys the right, because the restriction of acting collectively destroys the ability to act individually. That is why there is no requirement to be in a militia to exercise Second Amendment rights. The fourth mistake made by the Circuit Court is to assume that restrictions, not specifically enumerated in the Constitution, can be interpreted in without any other governing authority but their own. In other words, they can just make them up.
So what is within the context of “arms” for the Second Amendment? This is the hardest question to answer. The historical definition of arms means weapons that can be taken up by hands into the arms. Since the Second Amendment is an individual right, it is exercised as an individual right, so it covers only arms that can be taken up by individuals. This dismisses all the stupid arguments that without government limitations, tanks, ships, and nuclear bombs are covered, which clearly they are not. Also dismissed is that arms have to be military or militia related to be covered by the Second Amendment, which goes back to the wrongly decided Miller case of the Supreme Court, because the Second Amendment makes no limitation or distinction on military or civilian arms, it only says that militias are necessary to maintain a state of freedom. Therefore no government entity, court case, or law, can add such a distinction where none exists in the Constitution, only a constitutional amendment can do that. That was the fifth mistake by the 5th Circuit.
The “Small Arms Survey” is a report of many governments including the U.S., NGO’s, research institutes, and various United Nations agencies, all under the direction of the Swiss Federal Department of Foreign Affairs. They have defined “small arms” and “light weapons” as two categories of weapons. I would argue that the Second Amendment categorically includes all small arms within the context of “arms,” but does not include light weapons. Small arms include: revolvers and semi-auto pistols, rifles and carbines, (fully auto/select fire) assault rifles, sub machine guns (pistol caliber) and light machine guns (rifle caliber). I would also argue all historical and collectible arms are included. All of these can be taken up by the hands and into the arms of an individual. This is a recognized list by governments worldwide. They are also prohibited to their citizens worldwide, which makes our right so vital to be protected as written. The next category of light weapons are definitely in the realm of military forces and could not be thought of as protecting or exercising an individual right, except in times when there is no law or legitimate government. Light weapons include: heavy machine guns, hand held under barrel grenade launchers, portable anti-aircraft guns, portable anti-tank guns, recoilless rifles, rocket systems, and mortars. For more information see the Small Arms Survey.
The one mistake that is made my everyone: media, politicians, gun groups, anti-rights groups, courts, regulators, and pretty much everyone involved in the debate, is that they don’t distinguish between the right to own and carry (keep and bear), which is absolute, and the intent or actual use of firearms, which immediately goes into the realm of legal use or criminal use. So it is the use, not the ability to own and carry, where criminal law, regulation, and enforcement can take place. If this one simple concept could be understood, most of our problems with illegal gun control laws could be dealt with.
The sixth mistake the 5th Circuit made was using what the Supreme Court said the Second Amendment means, and not using the actual language of the Second Amendment itself. Somehow it got into our jurisprudence that the Constitution has to be validated by the opinions of judges and justices, through judicial review, otherwise it has no effect, rather than the Constitution standing on its own as the supreme law of the land, which the court members are sworn to recognize. The Circuit Court continues this mistake by relying on Supreme Court precedent to make their ruling. Precedent is where previously unconstitutional decisions or opinions are used to justify or excuse new unconstitutional rulings. The 5th Circuit used the infringements by the Supreme Court in Heller, to further infringe on the Second Amendment in the case of Hollis. The Heller decision split the Second Amendment into two parts. It held that the first part, the militia clause, referred to military weapons and was only “prefatory” (an introduction) and not part of any right of the people to arms declared to be military or militia based. Only the second part they said is “operative” and declares an individual right to arms. But this decision creates far more limitations on the Second Amendment, while barely validating a right already stated in the Second Amendment. Heller is a terrible ruling. It splits the Second Amendment in half, and renders the first half irrelevant. Which is what the 5th Circuit relied on to uphold the unconstitutional gun laws that said machine guns were illegal, because they are included in the militia half of the Second Amendment, which they said confers no rights because it is just a preamble. That is why judicial review is unconstitutional.
The Circuit Court goes back to Heller and artificially creates two classes of weapons. The first are military and militia weapons; the second refers only to weapons possessed at home and are in common use for lawful purposes like self defense. This includes handguns, which is how the D.C. handgun ban was overturned. The seventh mistake of the Circuit Court is deciding that the individual right declared in Heller “applies only to the second category of weapons.” Therefore the 5th Circuit rationalizes, if only the second part of the Second Amendment is valid, and machine guns aren’t commonly used for home defense, then machine guns aren’t part of the Second Amendment. By creating two classes of weapons, where only one is protected, the courts can further interpret out of the Second Amendment any weapon they deem to be in the first category, which is how the so called “assault weapons” bans happen, and why certain semi-auto rifles are always classified in public relations as “military style” weapons.
The eighth mistake of the Circuit Court was declaring that any weapon which is “dangerous or unusual” can also be infringed, further subdividing the Second Amendment. This is an absurd categorization because all weapons are dangerous. That’s what makes them weapons. And by what criteria are weapons deemed unusual? Again, there is no such technological limitation in the Second Amendment. There is no special criteria for guns that fire automatically, or fire musket balls hand loaded. There is no provision for limiting guns based on their operation or complexity of use. Which dismisses the argument that only weapons made during the ratification of the Constitution are covered. All courts and laws dealing with gun technology make the same mistake, because there is nothing in the Second Amendment related to gun technology or characteristics. The Second Amendment is eternal as written because it is a restriction on all levels of government, not on individuals or technology. And that is what all federal courts and judges fail to understand.
This all comes down to courts ignoring the Constitution as written, deciding which parts they think are valid, and which are not, creating legal decisions with the force of law despite no authority to do so, ruling on previous opinions of what that court thought of the Constitution and making up new restrictions from precedent, continuing to validate laws that are clearly unconstitutional, all this through a power they were never given, have assumed, keep using, and no one is stopping them.
The problem with any federal court ruling or opinion involving the Second Amendment is that the absolute best outcome is that the court says the Second Amendment means exactly what it already says. But even that is a setback because the Second Amendment is already superior to any court decision or opinion, and does not require the approval or validation of the court to mean exactly what it says. It has existed in its’ best form and authority since the time of ratification. So any decision attempting to revalidate the Second Amendment is redundant. Any decision, ruling, opinion, or order, that infringes in any way on the Second Amendment, is illegal and unconstitutional. Which is why the Second Amendment can’t be split into operative and inert halves, and why courts have no justification for validating or changing something that already exists in language that is plainly understandable and enforceable.
How this applies to Dallas, or Orlando, or any other mass shooting, is that such attacks can not be used to overrule the Constitution, or create any law in violation of the Constitution, nor make any court ruling that tells us our rights really aren’t our rights, but only court approved rights exist. The right to own and carry firearms is absolute within the context of small arms, regardless of characteristic, military or civilian application, or degree of being dangerous or unusual. It is only when the arms are touched by the user, that criminal the law can touch that use if criminal. Otherwise, the right can not, and must not, be infringed.
From the Supreme Court on down, throughout our history, courts have assumed a power they don’t have, to interpret the Constitution as they see fit, to make up things that aren’t there, to take away things that are there, to say that nothing in the Constitution has meaning until they say it does, and then declare what that meaning is, to make up anything they want, to use any previous decision no matter how conflicting with the Constitution to justify current and new actions, and to put themselves above the Constitution, with no other government check on their power. That is why justices and judges are incapable of ruling on the Second Amendment, or any other part of the Constitution.
In the final analysis, given everything we know, does anyone really believe that the Founders would ever give more power to the government, than rights to the people? Does anyone really believe that the Judiciary has the lawful ability to carve up the Constitution into pieces, or do you think the Founders ratified the Constitution to limit government exactly as they wrote it?
P.S. How come I’m not a judge?
Written by Greg Penglis and published at Canada Free Press July 10, 2016.
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