This is a re-post of an article posted at the American Live Wire. This article is so good, and so pertinent to the struggle going on today, I felt that it was imperative that these words and facts be preserved here as well.
The Dick Act is Not the Gun-Control Holy Grail
Those of you circulating information about the Efficiency of Militia Bill H.R. 11654, of June 28, 1902 (the Dick Act), PLEASE cease and desist. You know, the email and Facebook snippet that’s being touted as the Holy Grail of Second Amendment rights, and includes this ridiculous statement: “The Dick Act of 1902 cannot be repealed; to do so would violate bills of attainder and ex post facto laws which would be yet another gross violation of the U.S. Constitution and the Bill of Rights.” (Boldface added for emphasis)?
One Congress can ABSOLUTELY repeal the acts of any previous Congress. It’s as simple as that. So please, stop spreading this drivel. At best it’s disinformation, at worst it’s ludicrous. And I’m not even going to address the if-I-write-it-they-will-come lunacy of including “bills of attainder and ex post facto laws.“
The writers of the Constitution chose their words carefully. Any law which in any way hinders the RIGHT to keep and bear arms is illegal. ALL gun control laws are illegal. A law creating multiple definitions and divisions of “militia” does not override the Second Amendment. The most amusing part is: The Dick Act has been superseded several times. It’s ALREADY been “repealed.” And the superseding acts don’t override the Second Amendment either.
Advocates for the Second Amendment Are Grasping at Straws
It appears that many Americans are stretching the limits of the believable, looking for a magical mantra that will not only keep the Federal government away from our guns and keep the ATF from busting in our doors, but to also miraculously change the minds of those who are supporting stricter gun control. So many supporters of the Second Amendment have seem to forgotten that the Constitution of the United States is the law of this land, and no one – not the President, not Congress, not the FBI or ATF or any of the alphabet gangs -is above it. So many supporters of gun control have forgotten the same thing. It’s not surprising, actually – Americans have given up so many of their fundamental rights in the ultimately fruitless pursuit of safety and security that most people have stopped paying attention to the egregious slashing of the Bill of Rights happening right under their noses. Our government has become a self-perpetuating entity, an entity that has convinced America that we cannot live without it.
The fact is, the government cannot live without us. We’ve allowed our politicians to manipulate us into believing “popular opinion” and “majority” mean something in this country. Sorry, they don’t. The Constitution (and the amendments thereof) is the law, and it directs, grants, and limits each and every power and responsibility of the Federal government. And it is our right, duty, and obligation to ensure they fulfill those duties and responsibilities – with our unalienable rights enjoying the utmost care and respect.
The JFPO published an article stating,” That each person is responsible for his own defense against criminals has long been the law in the United States. The U.S. Supreme Court implied this in 1856, when it decided South v. Maryland, and held that a sheriff did not have a duty to protect an ordinary person, but only had a duty generally to uphold the Law. The Court indirectly re-affirmed Americans’ private and personal right to keep and to bear arms for self-defense purposes. More recently, a U.S.Appellate Court reaffirmed that the government has no duty to protect the average person. In 1939 [with regard to United States v. Miller, the only U.S. Supreme Court case reviewing the Second Amendment in the last 70 years] the Supreme Court was not asked to recognize that Americans never have had a right to protection by the government, and so have a right to keep and bear arms for self-defense. Because the average person’s right to self-defense – and to the possession of firearms for that purpose – has not been explicitly recognized,criminals’ abuse of firearms has been used to justify sharp curtailments of law-abiding persons’ civil right to be armed. Laws concerning the ownership of firearms for personal defense need to be adjusted to recognize that South v. Maryland implicitly re-affirmed Americans’ right to own firearms for personal defense. As a result, criminals’ abuse of firearms cannot lawfully be a pretext to deprive the law-abiding of those firearms (boldface added).
In other words, we don’t need to find the Holy Grail of sensibility to resist further infringement. We are holding it in our hands.
That said, let’s back up a bit.
A Historical Perspective
From our Declaration of Independence, In Congress on July 4, 1776:
“When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
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. 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.–Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.”
Firstly, this is irrefutable proof that our Founding Fathers recognized that each of us has “certain unalienable rights,” rights endowed by the “Creator.” Doesn’t matter if you believe in God, the Declaration of Independence rests on the premise that God believes in you.
Secondly, our Founding Fathers recognized that a government can become tyrannical only if the people allow it. They provided for a government whose sole power lies in the “consent of the governed,” the governed having the right – and obligation – to “alter or abolish” any government or form of government that poses a threat to the unalienable rights of Life, Liberty, and the pursuit of Happiness.
Thirdly, our Founding Fathers acknowledged a very important and telling human trait – a trait that should be easily recognizable to anyone currently in America: ”…mankind are more disposed to suffer, while evils are sufferable, than to right themselves…“. In other words, people will take the devil they know over the devil they don’t any day of the week, even if the devil they know is abusive, tyrannical, repressive, and wholly self-perpetuating.
11 years later, the Federal Convention met to revise the Articles of Confederation. After several months of discussion and debate, it became clear that amendment to the Articles would not be sufficient, and an entirely new frame of government would be drafted instead. Throughout the summer, closed sessions were held to draft a comprehensive governing document… and on September 17, 1787, the Constitution of the United States was ratified and established.
Stay with me while we examine a bit more closely what our Founding Fathers were doing with this reframed document:
Article I., Section I. ” All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” This means that only Congress can enact legislation. The ATF can’t just make up laws and regulations. Neither can the President.
Article II, in entirety, states the President is the Commander-in-Chief of the United States Military and of “the Militia of the several states” if that Militia is called into action in the service of the United States. The President has the power to require any Executive Department to report with regard to the duties of their Department, and he has the power to grant reprieve/pardon for offenses against the United States (except for impeachment, obviously). He can make treaties with the consent of Congress, he can appoint United States Officers and Supreme Court judges, and “he shall take Care that the Laws be faithfully executed.” In other words, the President is tasked with being the guardian of the Constitution, and ensuring that the law of the land is supreme. But the President does not have the power to make law.
Further, nowhere in the Articles of the Constitution does it grant power to any branch of the Federal government to restrict, regulate, suppress, or otherwise impose upon the tools of “the militia.” The powers of Congress, the President, or any Executive department do not extend to regulation of firearms and ammunition (among other things). Period.
Now, moving on to the Bill of Rights, we see the Second Amendment in all of its glorious simplicity: ”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.” ”Infringed” means “violated.” Synonyms of “infringe” include “breach,” “contravene,” “encroach,” “impose,” “intrude,” “invade,” “meddle,” “steal,” “offend,” “transgress,” and “trespass.” Replace “infringed” with any one of these synonyms and it should be obvious that the Framers were really serious about the right of American citizens to protect themselves, their families, and their liberty – and about their roles as Citizen Soldiers. This right – this unalienable right – shall not be infringed.
In a 1986 Harvard Journal of Law & Public Policy article, David T. Hardy wrote, “The closing phrase of the Second Amendment favors neither the collective nor the individual right interpretation, but its absolute language suggests that the Framers intended to recognize the right in the strongest possible language. Early courts and commentators were in accord with this view, stressing that “No clause in the Constitution could by any rule of construction be conceived to give to Congress a power to disarm the people.” Some early courts and commentators even suggested that the choice of the term “shall not be infringed” rather than “Congress shall make no law” (as is used in the First Amendment) indicated a desire to prohibit such action by states as well as the federal government.
From The Oxford Companion to US Military History: The concept of the “citizen-soldier” is based on the notion that citizens have the obligation to arm themselves to defend their communities or nations from foreign invaders and from domestic tyrants. Usually associated with republicanism, it is best understood in opposition to other forms of military organization, particularly the practices of hiring mercenaries or establishing professional standing armies of the state. In the latter two cases, soldiers and officers are isolated from society and can represent a praetorian challenge to legitimate rule. By contrast, the citizen-soldiers embody the will of the people directly because they are the people. They have a stake in preserving liberties and rights in a society, hence supplying a check on tyranny and corruption of governments.
Richard W. Stevens noted, “Article I, Section 8, clauses 15 and 16 of the U.S. Constitution refer to Congress’s powers concerning the state militias. Clause 15 empowers Congress to “call forth” the state militias into national service for specific purposes. Clause 16 empowers Congress to organize, arm and discipline the state militias, and to govern the militias while they are in national service. The Second Amendment confines Congress’s power by guaranteeing that the Congress cannot “govern” the militias right out of existence and thereby disarm ‘the people.’”
Further, the United States, as an entity, is a product of the Constitution. When the government punishes a American citizen abroad, the protection of the Bill of Rights and the Constitution are not stripped from the individual because the individual is in another land. All agreements made with a foreign nation are restricted by the Constitution to the degree of power they confer on any branch of the government. No Executive Order, Presidential Directive, Executive Agreement, no NAFTA, GATT/WTO agreement/treaty, passed by ANYONE, can supersede the Constitution.
So What Now?
As the only Supreme Court review of the Second Amendment was seventy years ago, the decision of the United States Supreme Court in United States vs. Miller, which is essentially a narrow form of the individual rights approach to interpretation of the Second Amendment. The decision shares at least most of the amendment’s historical virtues, but is incapable of dealing with changes in infantry weapons technology that have occurred in the 20th century. Under that approach, legislatures are prohibited from restricting the possession of modern weapons by private citizens because these weapons can be used for military purposes.
Those who think the Supreme Court’s decision in United States vs. Miller was a broad-based general ruling which gave the government license to restrict Americans’ civil right to be armed should also accept the Court’s logic, and consider plainly unconstitutional bans on: new manufacture of fully-automatic and semi-automatic military-type firearms, the new manufacture of detachable ammunition holders (magazines), especially those types of magazines which are standard U.S. military issue, and possession and sale of armor-piercing ammunition. These types of firearms, accessories, and ammunition are precisely those most suitable for military and militia use. and have been so issued by the Federal government to U.S. armed forces. The Court held that the keeping and bearing of such firearms was explicitly protected by the Second Amendment.
And those who think, like I do, that the Supreme Court made a narrow decision in 1939, which affected only short-barreled shotguns, should think the above bans are plainly unconstitutional, and so in need of Supreme Court review.
Should we be given such a golden opportunity, it must be established by powerful documentary and expert evidence beyond any doubt that the use by U.S. military and militia forces of certain classes of firearms, ammunition, and magazines – which have been banned from civilian possession– makes such bans unconstitutional. Additionally, South v. Maryland (1856) and a large body of later Federal and State jurisprudence , by effectively relieving the government of a duty to protect the average person, implicitly recognizes the civil right of the law-abiding person to keep and bear arms for personal defense.
Thus, if the Holy Grail of gun control is what you seek, leave all reference to the dead-and-gone Dick Act and find it in this statement supported by the Constitution, the Bill of Rights, and existing case law: If, according to established precedent, the law-abiding person has a civil right to be armed for self-defense, criminals’ abuse of firearms cannot be used to justify depriving the law-abiding of those firearms.