On the heels of the Sandy Hook shooting, New York State becomes the first to issue new gun legislation. “The Secure Ammunition and Firearms Enforcement Act, or SAFE Act, gives New York the toughest gun laws in the nation and touches on the mental health issues that both pro-gun and anti-gun activists say should be part of any new legislation.“

Many pro and anti-gun control advocates saw New York’s decision as a model for the President and Federal legislation, which he just signed moments ago as Executive Orders, which include: Mental Health requirements, Universal Background Checks, restore ban on military style (restrict manufacturing) and 10 round limit on magazines, tougher laws on sale of guns (possibly enforced by BATF) and federal funding to ‘put more cops back on streets’. But here’s where it gets both historically interesting and potentially dangerous for individual liberties and the unintended consequences that always follow in the wake of federal intervention into markets.

The Second Amendment that has been quoted by both sides of the gun control issue is unfortunately sorely misunderstood. Part of the Bill of Rights, the second amendment like the other amendments address specific rights based on natural (Divine) law that restricts federal power and emphasizes the delegated and non-delegated powers between the federal government and the states. The Bill was in part due to Virginia and other states that needed better clarification that protected state sovereignty and also two colonies that hadn’t ratified the Constitution yet, North Carolina and Rhode Island weren’t convinced that state sovereignty was protected by the document well enough. The Bill was proposed in Congress September 25, 1789 and North Carolina later that year ratified the Constitution and Rhode Island (the last to ratify) in June 1790. Regarding the Bill of Rights, most ratified the Bill through 1791 with, Massachusetts, Georgia and Connecticut ratifying in 1939 as part of the Bill of Rights sesquicentennial celebrations.

Does the 2nd Amendment (Bill of Rights) have power over all government or specifically written to restrict federal power?

The founding era framers and ratifiers feared that what they were creating in a document to protect individual liberty and to limit the power of the state would later be destroyed through ‘unpacking’ its language and interpretation. Words like ‘Welfare’ which defined the proportionality of the ‘Benefit Principle’ and restricted federal power and not the egalitarian intentions to ‘create equality’; or ‘Commerce’ which had a narrow intent in refereeing state interrelationships and not the broad interventionist meaning of today, which would undermine a federative republic and dissolve into a centralized system of Monarchy/Democracy, from which they fled from earlier.

In creating the Bill of Rights, left on the writers’ floor was proposed language from James Madison, “No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.” In some ways this language (while not all encompassing) was uncharacteristic of Madison who in Federalist Papers #39, very adeptly laid out the balance of power (sovereignty) between federal and national governments inferred in the Constitution. The avoidance in the final Bill drafted of the language was purposeful as they understood both the importance of a federal government that oversaw conflicts between the states and the involvement of the states in foreign relations, but they also saw the value of a decentralized system (federation) of government in the states and municipalities that had their own charters/constitutions, closer to the people in handling social and economic issues that go hand in hand. David Brooks of the NYTimes recently on a Sunday talk show commenting on gun control said that the needs of a small rural town in Wyoming are different than the needs in New York City. In NYC a police station is literally around the corner, while in rural Wyoming they may arrive in an hour.

It was understood early on that the Bill of Rights, like the Constitution, specifically addressed federal power and not the States. Even up until 1833 in Barron v. Baltimore, the Supreme Court specifically ruled that the Bill of Rights provided “security against the apprehended encroachments of the general government—not against those of local governments.” But unfortunately that all changed with a Civil War, an Amendment and new courts. In 1925 in Gitlow v. New York, the Supreme Court ruled that the 14th Amendment allowed that the Bill of Rights applied to the states as well. What the founding era generation feared was starting to unfold, as America headed toward a centralized Democracy, monolithic, fragile and impervious to competition or change.

A Constitutional Republic that was created to protect the liberties of the individual and the market for free and voluntary association and exchange which leads to social cooperation is being replaced by a Platonic society of visionaries and experts in a centralized government that plans for social cooperation through limiting the freedoms of the individual and focusing on ‘collectives’ and managing markets toward outcomes instead. That’s why an issue like gun control makes sense to the latter: ‘limit the freedom of the individual in order to create a better outcome of ‘less gun violence’ and a ‘better society’. What they don’t account for is the unintended consequences that result instead. Rather, the founding era if they could speak to us from their graves would say, ‘Government closer to the people works better’ and that gun control legislation at lower levels of government (in a decentralized system) even when they fail can be profitable as failure is cast aside while success can be adopted by others. Also, there’s different needs and wants in Texas versus New York.

Finally, there is good news. As with other federal infringements like the Affordable Care Act and the changes in the National Defense Authorization Act (2012) many states are taking positions of resisting the effects on state sovereignty. Through pragmatic state actions that can be interpreted as ‘Nullification’, ‘Interposition’ or there’s even been discussion of ‘Article V’ Convention of the States as in the Founding Era period as states rushed back then to protect the Constitution and it’s integrity that they created. If gun rights are to be infringed upon, the states (their constitutions permitting) can experiment with that and we’ll all benefit indirectly, but a federal government which uses the ‘if we can save one life’ straw dog argument to promote a collective equality or freedom is way, way, way out of bounds and should be challenged by the states.

Christopher M. Mahon, Editor
editor@ambidextrouscivicdiscourse.com

While the country prepared for St. Patrick Day celebrations on March 16, 2012 Friday night, the White House Press Office discreetly released Executive Order, `National Defense Resources Preparedness‘ which in a time of `national crisis’ arbitrarily determined by the Federal Government, shifts control of private business, industry, travel and even the labor of professionals and specialists that are deemed critical to operations into the possession of the Federal Government.

Now, at first blush and within the backdrop of present day societal economic and foreign diplomatic challenges seems like a radical and dangerous Executive Order (EO); this Order actually has a genesis from an FDR EO from 1939. There have been several additional amendments and several similar orders that were crafted to protect homeland threats from abroad. But what has happened though in the cloak of legislation to protect American Liberties? In 1950 EO10323 (Defense Production Act of 1950) by President Truman, it moved designated business equipment production under federal power during attacks (Korean War). EO12656, under President Reagan in 1988 put language in previous EOs to include Nuclear Engagement. In 1994 under President Clinton, EO12919 entered the language to include Terrorism and recognized the potential for domestic attacks. The National Defense Resources Preparedness by President Obama, the most recent EO, which seeks to broaden even further language to protect US financial, agricultural, transportation, military and utilities structures against the threat of `extremists’ and others as a result of both foreign and domestic crises is arbitrarily defined by the Federal Government; it has dismantled further constitutional separation of power and consolidated federal powers and opens up the ability of the federal government to step in during an economic or civil unrest crisis that it deems potentially threatening to US society.

Also, because of recent legislation through Congress: the Patriot Act 2001, which was resigned by President Obama in May 2011 and the recently passed National Defense Authorization Act (NDAA) 2012 give the federal government even more power to control the freedoms and property of US Citizens, this EO by President Obama is even more potent than past orders. Also, this EO revokes Reagan and Clinton’s EOs which while nuanced is very important to recognize. There was language in those that recognized the US Constitution as the final arbiter between the powers of the federal and state governments. Also, there was language in both that recognized the coordination of powers between the federal and state government. As of President Obama’s EO these `bumpers’ on federal power have been removed. The danger of abuse either by pragmatic overreach of government in a time of crisis or the potential for tyrannical power has just been increased.

Another change that could have great impact is in the Loan section 300, where instead of the Treasury raising money in the market (Import-Export Bank, etc) it is now authorized to go behind closed doors with the Federal Reserve. This means the potential for mischief has increased. Solyndra type debacles could be bailed out without public scrutiny and banks now have `Speakeasy’ access to credit.

In Section 700, it names a `governing committee’ which names most federal agency heads but includes a few private institutions that oversea potential threats and the management of preparedness in the order of a FEMA type operation. Oddly though, there is no state representation on the committee: No Board of Governors, nothing.

Major Changes:

1. Section 300: Loans done through Federal Reserve (banks) coordinated by Department of Treasury so theoretically hidden from public scrutiny and the possibility of Solyndra-type financial problems being buried and the abuse of `Crony Capitalism’.
2. Previous legislation (EO 12656 -Reagan 1988, EO12919 -Clinton 1994) referred to State level coordination and adherence to constitutional design and limited actions to Defense, that would limit the scope of homeland federal abuse, this Executive Order removes that language.
3. Adds the word `Threat’ to the language which could allow for preemptive actions by federal authorities and the possibility of state, local and individual (property) overreach.
4. This Executive Order dovetailed with NDAA 2012 broadens the scope of Homeland (domestic) security to include `enemy combatants’ and non-defense threats with loss of due process protections.
5. Changes to Section 300 where access to Loans by banks and business is through Federal Reserve and opens the door to mischief and abuse.

 

 

Christopher M. Mahon, Editor