Sunday, May 19, 2013

Infringed - What Congress Cannot Do

Suppose that section 8 of our Constitution had, after enumerating the various sorts of laws Congress was empowered by We the People to enact, it followed with disclaimers.  "No laws enacted for the aforementioned purposes will be lawful if they do any of the following:"

And now let's suppose that one of the deal-breakers was that a federal law couldn't infringe on the arming of the populace against the government.  Which would mean that any federal law that limits or undermines the ability of the citizenry to resist a regime they consider despotic is null and void.

The funny thing is that the Bill of Rights are simply Amendments that add things to the Constitution that the People desired (particularly those swayed by the Anti-Federalists).  The Bill of Rights should be interpreted this way.  Does the bill infringe in any way on the ability of the states and their communities to resist a government gone wrong?  The 2nd Amendment (along with the other Amendments in the Bil of Rights) amends section 8 of the Constitution by following "Congress can only do this" with "but only if their laws don't do any of these."

This cartoon is uncommonly right on the money:
Just in case the first 8 Amendments were to be interpreted as an enumeration of our rights (which they often are -- instead of amending our constitution to recognize another right, federal courts are employed to read things into the existing Amendments), the state legislatures had a disclaimer added that an enumeration of basic restrictions on Congress (a restraining order against tyranny) would in no wise imply that the federal government was entitled to infringe on other natural rights (e.g., the natural rights of parents to raise their children, the natural right of a person to defend his person and his home, etc.).

And then there's the 10th Amendment.  Congress is not allowed to make a law that asserts federal power over the power of a State, unless the Constitution explicitly empowers Congress in that way or explicitly forbids the States to assume such power.  Any federal laws that transgress this line are null and void.

As President, George Washington dated his executive statements from the signing of the Declaration, e.g. "in the 11th year of the United States, and yet the Declaration summed up the origination of the U.S.:  "that these United Colonies are, and of Right ought to be Free and Independent States."  It didn't say they (plural) ought to be reborn as "a new nation, conceived in Liberty," not reborn as a single new State.  Both the Federalist Papers and the Anti-Federalist Papers discuss at length how the Constitution (or how it might not) protect the People from their own federal government.

The Constitution was written to allow the free and independent States to protect their freedom and independence as States by wielding their combined  power while restricting the federal government of that unification for the very same purpose.

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