Wednesday, June 29, 2016
Sunday, June 26, 2016
The Second Amendment and the Right to Own Warships
The Second Amendment and the Right to
Own Warships
by Stephen W. Houghton II
Those who favor gun control often try to paint the National
Rifle Association as extremists advocating a misinterpretation of the Second
Amendment to allow private ownership of “Assault Weapons.” Far from favoring a
broad and radical interpretation of the Second Amendment, the NRA is viewed in
the gun rights community as moderate and compromising, when it comes to our
Second Amendment rights.
To discover which
characterization of the NRA is correct, it is important to ask what does the
constitution mean when it says, “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.” To do so it is important to remember the legal
principal that one can only understand a part if one understands the whole,
that is to say, that provisions of the constitution must be understood in
relation to the whole text.
The obvious place to start is with Article 1, Section 8,
Clause 16 granting congress power, “To provide for organizing, arming, and
disciplining, the militia” This clause was interpreted by the Second Congress
of the United States in the second Militia Act of 1792 which required all free
able bodied male citizens age 18-45 to acquire a musket and bayonet, so that
they could defend the republic. The musket and bayonet were the standard
infantry combat arms of their day, equivalent to the M-16 rifle used by the
Army or the similar though semi-automatic AR-15 that is the most popular rifle
with citizens today.
Though the obvious place to start, the militia clauses are
not the only place to look when trying to understand the Second Amendment. For
example Article 1, Section 8, Clause 11 grants congress power “To … grant
letters of marque and reprisal..” For those who don’t know, a letter of marque
was a license for privately owned warships to capture enemy shipping and sell
it for profit. If follows of necessity that the constitution assumes that
private citizens can own warships. It is a matter of the historical record that
such private warships were armed with as many as 20 cannons.
If one can own a ship full of cannon, then it would
follow that one can own a cannon not mounted on a ship. Cannon are a form of
field artillery. This category would include weapons such as rockets, mortars,
howitzers and similar weapons. Obviously by the rule that a greater right
includes the lesser, then the private ownership of machine guns and rocket
propelled grenades could also be inferred. If one can own artillery mounted on
a boat, presumably you can own artillery mounted on a car, which would be a
tank.
Does the National Rifle Association make any such argument
about the constitutions implicit assumption, that warship, combat aircraft,
armor and artillery may be privately owned? It doesn’t. Instead they speak of
people’s undoubted right to defend themselves, their right to engage in the
sport of hunting, their duty to aid the civil power in time of crises and to
resist usurpation. These are goals that all Americans, liberal conservatives
and liberal progressives alike can support.
That does not mean that the argument that the constitution
assumes the private ownership of weapons of war from machineguns to warships is
wrong, it just shows how moderate the NRA really is. It also shows how
un-American interests such as the slave power in the 19th century
and the progressive movement in the in the 20th have distorted the
true understanding of our founding documents.
Of course as Justice Scalia wrote in Heller, even essential rights can
be regulated, for the protection of the rights of all. So laws requiring that
field artillery and the like to be kept in public armories when not in use,
maybe constitutional.
But what is not by any reasonable stretch of the imagination
constitutional are laws advocated by gun control extremists that seek to
deprive law abiding citizens of the right to own pistols, rifles, and shotguns
for the defense of themselves and the state.
An Open Letter to my Fellow Citizens
An Open Letter to my Fellow Citizens
by Civis Americanus et Novi Eboraci
"The saddest
epitaph which can be carved in memory of a vanished liberty is that it was lost
because its possessors failed to stretch forth a saving hand while yet there
was time." - Justice George Sutherland
The bedrock upon which the Republic stands is Liberty which our
constitution unambiguously calls a blessing. The right to speak one’s mind on
matters of public concern and to publish those thoughts is not only an
important individual right by which individuals can defend their other rights
in a democratic society, but also an instrument by which the counsel of reason
may come to guide the policy of the nation.
Thus it saddens me to see so many of my fellow citizens being led astray
by men of zeal, most well-meaning but without understanding, but others with
darker motives, who propose to gut the First Amendment in the name of political
equality. The cause of this unfortunate state of affairs is a misunderstanding
of the Supreme Court’s 2010 ruling in the case of Citizens United v. FEC. This
misunderstanding is threefold, first as to what the court held, second as to
the effect of the ruling, and third as to what can be done about the concerns
of some that this will cause negative effects for the body politic.
The question that the Supreme Court had to answer in Citizens United was
this, when individuals form or join an association do they give up their right
to free speech? The court following the opinions of courts before it held that
that they do not.
In asking whether this decision was the right one, it is helpful to look
at what a contrary ruling would have meant. If associations have no right to
publish their views, then it follows that: a union should have no right to
publish an advertisement to support a candidate that will look carefully after
the interests of workers, that the ACLU should have no right to publish adds
defending unpopular speech, that the NRA should not have a right to rate
candidates for political office, that the New York Times should not indorse
candidates or for that matter have an editorial page, that priests and rabbis
should have no right to comment on the morals of public officials or their
policies from the pulpit, that universities should have no right to teach that
which they believe to be true, good, and useful.
Would these outcomes be consistent with the First Amendment rule that
“Congress shall make no law … abridging freedom of speech or of the press”? I
submit that they would not.
Now some will no doubt say that the law that was struck down was narrower
than this, which is partly true, but look at the facts at issue before the
court in Citizens United. There the question was could a group of citizens and
corporations form an association to make a documentary about a candidate for
the presidency of the United States. Upon what basis could this be prohibited
without treading the right of people to associate to express their views under
foot?
More to the point those who propose to amend the constitution of the
republic to overturn Citizens United v. FEC, have not limited their proposed
amendment to only narrowly tailored instances. On the contrary, Senator Tom
Udall’s proposed amendment gives congress “power to regulate the raising and
spending of money and in-kind equivalents with respect to Federal elections,
including through setting limits on-- the amount of funds that may be spent by,
in support of, or in opposition to such candidates.”
The key phrases are “in-kind equivalents” and “spent by, in support of,
or in opposition to such candidates.” An ”in kind equivalent” is anything which
has value for the purpose of electing or defeating a candidate for public
office. “Spent by, in support of, or in opposition to such candidates”, means
what it says. So under this amendment congress has power to regulate anything
that could help elect or defeat a candidate for public office.
There can be little doubt that a person standing on a street corner
handing out homemade leaflets in support of a candidate would be of value to
that campaign. A blogger who writes posts publicizing negative facts about a
candidate is surely of value to the candidate’s opponent. For that matter,
there is nothing more helpful to a campaign than an average citizen who is
convinced that the candidate should be elected and tells his or her friends and
acquaintances of their view. These are all in kind equivalents spent in support
of or opposition to candidates. They are also the absolute core of the area
protected by the First Amendment.
Whether he is well meaning but without understanding or worse, I will not
venture to say, but the effect of Senator Udall’s proposed amendment is to put
the power to regulate all political speech into the hands of Congress. This is
an abomination.
The only reason citizens have been fooled into thinking this is anything
but a disaster is because they have been mislead about the magnitude and effect
of campaign spending. They believe that so much money is being spent that the
donation of the average citizen can have no impact on the electoral process.
Here are the facts. In the 2012 election cycle about $7,127 million was
spent on the Federal Elections. Since the population was 313.9 million in 2012
that is $22.70 for every man, woman and child in the United States.
This is hardly an out of control amount and well within the reach of most
citizens. Nor is it true that gutting the first amendment is the only way to
mitigate any ill effects of campaign spending on the body politic.
If we are really worried that campaign contributions are corrupting our
legislators there are two reforms to the legislature that would help reduce
this problem. First, if we significantly increased the number of seats in the
House so that house districts were half as large this would significantly
reduce the need for campaign spending because it would cost less than half as
much to run for a district half the size. Second, we could choose some of the
members of Congress by lottery. If a third of the members of the Senate were
chosen from among members of the state legislatures and a third of
representatives were chosen by lot from among the citizens then it would be
nearly impossible for campaign donations to significantly corrupt the
legislative process.
Another way we can reduce corruption in the political process is to
reduce the fruits of crony capitalism. If the courts would fulfill their duty
to enforce the constitution in the realm of economic liberty, there would be a
lot less potential for corruption. For example, in the case of Kelo v. New
London, if the court had enforced the public use clause of the Fifth Amendment,
it would have put to an end the practice, ripe for corruption, of using the
eminent domain power for “economic development” that was as Justice Thomas
wrote, “suspiciously agreeable to the Pfizer Corporation.” Likewise if the
court would enforce the privileges and immunities and due process of law
clauses, then much of the monopoly licensing that stifles our economy and provides
a strong motive for political corruption would be ruled unconstitutional.
In other words, if we are concerned about corruption of the legislature
then we can take steps to fix that without gutting our rights of association
and free speech. But it will be a sad day for our country and the liberty of
the world when an amendment is passed which repeals our First Amendment Rights.
“The very purpose of
a Bill of Rights was to withdraw certain subjects from the vicissitudes of
political controversy, to place them beyond the reach of majorities and
officials, and to establish them as legal principles to be applied by the
courts. One's right to life, liberty, and property, to free speech, a free
press, freedom of worship and assembly, and other fundamental rights may not be
submitted to vote;” - Justice Robert Jackson
What We Stand For
What We Stand For
by Stephen W. Houghton II
We stand for the traditional American ideal of a liberal, constitutionally limited, democratic, federal, republic. Let us break that idea down quickly. By liberal we mean the idea that all people are born with the inalienable right to life, liberty, and property, in sum to the pursuit of happiness. By constitutionally limited, we mean two things, first that all government power is limited by the principal of natural rights and second that the federal government is limited to its constitutionally enumerated powers. By democratic, we mean that government officials shall be chosen by the people, or by their elected representatives, or from among the people by random selection as in the case of juries. By federal, we mean that the state and national governments are both independent instrumentalities of the sovereign people, that the states are supposed to compete with one another to provide just and efficient government, while the national government deals with foreign matters and keeps the states within their legitimate bounds. By republic, we mean not only not a monarchy, but more, as John Adams put it, “A government of law and not of men.”
We stand for the idea of the United States as an Anglosphere nation. That is a nation built of people who embrace the tradition of Magna Charta, the Petition of Right, the English Bill of Rights, the Declaration of the Causes and Necessity of Taking Up Arms, the Declaration of Independence, the Constitution of the United States, the Bill of Rights, the Emancipation Proclamation, the 13th, 14th, and 15th Amendments, and the whole Whig common law tradition.
Anglospherism does not mean nativism in the sense of believing that only native born Americans or those of British extraction can make good citizens. Many immigrants have come to our country because they love our ideals and want to be free, that is part of what has made our nation great and we welcome them. But we also stand against politicians who despise our people and way of life and want to import a new electorate. We believe we should elect new politicians instead.
We stand for the tradition of individual rights: life, liberty and property, free speech, free press, freedom of conscience, the right to keep and bear arms, that a person’s home is their castle, the right to be free of unreasonable searches and seizures, the right to a grand jury hearing, the right against self incrimination, the right to trial by jury, the right not to be subject to arbitrary punishment, the right to due process of law, the right earn a living without unreasonable government interference, and many more!
We believe in patriotism and civic government: the town meeting adapted to meet modern conditions, the militia adapted to meet the challenges of terrorism and other modern problems, the grand jury to combat corruption in government, in private associations to meet public needs and for self help.
We believe in the free and equal system of English laws, especially in the Whig tradition of Sir Edward Coke and Lord Camden, applied to government and citizens alike by an independent judiciary.
We believe in the tradition of representative democracy limited by an upper house, embodied by the British parliament and our congress.
We believe in the economic system known variously as liberalism, the free market, manchesterism, or capitalism. That is to say we believe that people have a right to use their person and property to engage in the production of goods and services and to trade freely with others and to keep the fruits of their labor.
We believe in a foreign policy based on free trade, freedom of the seas, defense of our interests and our allies, and a naval and trade oriented world order.
We believe in a defense policy based primarily on naval power and minimal foreign intervention. We believe that the ground forces should be kept small in time of peace so that the executive branch cannot get the nation involved in a war without the consent of Congress.
In short we stand for Americanism!
The Old Republic Vol. 1 No. 0
The Old
R e p u b l i c
Defending the
revolutions of 1215, 1688, 1776, and 1865 from “progressive” counter revolution
A Journal of
Traditional American Politics
Summer 2016, Vol.1 No.0
Feature……………….What We
Stand For….…………………………… page 1
Rights………… An Open Letter to my Fellow Citizens………………… page 2
Law……The Second
Amendment and the right to own warships……. page 3
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