Infringement vs. Rights

Infringe: transitive verb, “to encroach upon in a way that violates law or the rights of another” — Merriam-Webster Dictionary.

As a land surveyor I learned many years ago that the term “encroach” meant to take away the use of another’s property by denying him or her access to it. As an example if you build a fence or wall six inches over your property line you are encroaching on your neighbor’s property and denying him access to it. If you or your neighbor sell property and the new mortgage holder requires an extended title report including a proper survey the encroachment will show up in the title report and be excluded from your title insurance. Also, if as a property owner you are aware of the encroachment and do nothing about it you a acquiescing to your neighbor’s demand for your property and in any potential future legal action to require him to remove the encroaching structure you might lose a portion of your property to a claim of adverse procession. In essence, if you do not protect your rights to property you may lose that property — the same applies to your rights. As James Madison stated in his 1792 Essay on Property:

“Government is instituted to protect property of every sort; as well that which lies in various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his.”

This brings me to my comments on the Second Amendment to the Constitution, one of the “Bill of Rights.” The Second Amendment states:

“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.”

When our Constitution was first adopted it did not contain the first ten amendments. Founders like Alexander Hamilton and Thomas Jefferson did not believe that these amendments were necessary as the words of the Constitution would suffice to protect our unalienable rights of life, liberty and happiness. Others such as George Mason believed and fought for these amendments to make clear to future generations the full meaning of the Constitution and the unambiguous meaning as to the limitations on the power of the federal government. Mason won the debate and the first act of the new Congress was to adopt these ten amendments, known as the Bill of Rights, and have them ratified by the states. In fact Mason authored some of these amendments, including the Second. It was Mason who said in a 1788 speech in the Virginia Ratifying Convention:

“[W]hen the resolution of enslaving America was formed in Great Britain, the British Parliament was advised by an artful man, — who was governor of Pennsylvania, to disarm the people; that it was the best and most effectual way to enslave them; but that they should not do it openly, but weaken them, and let them sink gradually, by totally disusing and neglecting the militia.”

When asked what his definition of militia was Mason responded; “I ask, sir, what is the militia? It is the whole people except for a few public officials.”

To further expand on the definition of a state militia I refer to the Second Militia Act of 1792 passed by Congress and signed into law by President George Washington, a firm supporter of an armed citizenry. The act states:

“That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutered and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack. That the commissioned Officers shall severally be armed with a sword or hanger, and espontoon; and that from and after five years from the passing of this Act, all muskets from arming the militia as is herein required, shall be of bores sufficient for balls of the eighteenth part of a pound; and every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements, required as aforesaid, shall hold the same exempted from all suits, distresses, executions or sales, for debt or for the payment of taxes.”

It was the intent of Congress to have an armed citizenry, responsible to the states that could be called upon in the time rebellion or insurrection. This militia, consisting of free men should bear their own arms as specified by federal regulations. This militia under the control of the states could also be used to thwart an overbearing federal government that at this time had no standing army.

Over the years the Second Amendment has been surrounded by controversy. Those who have a fear of gun ownership claim the Amendment pertains only to legitimate and well-organized state militias, not to private citizens. Others (the majority of Americans) believe that the Amendment means that private citizens have the right to own firearms of their choice.

In spite of extensive recent discussion and much legislative action with respect to regulation of the purchase, possession, and transportation of firearms, as well as proposals to substantially curtail ownership of firearms, there is no definitive resolution by the courts of just what right the Second Amendment protects. The opposing theories, perhaps oversimplified, are an “individual rights” thesis whereby individuals are protected in ownership, possession, and transportation, and a “states’ rights” thesis whereby it is said the purpose of the clause is to protect the States in their authority to maintain formal, organized militia units. Whatever the Amendment may mean, it is a bar only to federal action, not extending to state or private restraints. The Supreme Court has given effect to the dependent clause of the Amendment in the only case in which it has tested a congressional enactment against the constitutional prohibition, seeming to affirm individual protection but only in the context of the maintenance of a militia or other such public force.

In United States v. Miller, the Court sustained a statute requiring registration under the National Firearms Act of sawed–off-shotguns. After reciting the original provisions of the Constitution dealing with the militia, the Court observed that “with obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted with that end in view.” The significance of the militia, the Court continued, was that it was composed of “civilians primarily, soldiers on occasion.” It was upon this force that the States could rely for defense and securing of the laws, on a force that “comprised all males physically capable of acting in concert for the common defense,” who, “when called for service . were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” Therefore, “in the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than 18 inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well–regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.”

Since this decision, Congress has placed greater limitations on the receipt, possession, and transportation of firearms, and proposals for national registration or prohibition of firearms altogether have been made. At what point regulation or prohibition of what classes of firearms would conflict with the Amendment, if at all, the Miller case does little more than cast a faint degree of illumination toward an answer.

Pointing out that interest in the “character of the Second Amendment right has recently burgeoned. Justice Thomas, concurring in the Court’s invalidation (on other grounds) of the Brady Handgun Violence Prevention Act, questioned whether the Second Amendment bars federal regulation of gun sales, and suggested that the Court might determine “at some future date whether Justice Story was correct when he stated that the right to bear arms “‘has justly been considered, as the palladium of the liberties of a republic.”

It was not until 2008 that the Supreme Court definitively came down on the side of an “individual rights” theory. Relying on new scholarship regarding the origins of the Amendment, the Court in District of Columbia v. Heller confirmed what had been a growing consensus of legal scholars — that the rights of the Second Amendment adhered to individuals. The Court reached this conclusion after a textual analysis of the Amendment, an examination of the historical use of prefatory phrases in statutes, and a detailed exploration of the 18th century meaning of phrases found in the Amendment along with the various writings of the Founders. Although accepting that the historical and contemporaneous use of the phrase “keep and bear Arms” often arose in connection with military activities, the Court noted that its use was not limited to those contexts. Further, the Court found that the phrase “well regulated Militia” referred not to formally organized state or federal militias, but to the pool of “able-bodied men” who were available for conscription. Finally, the Court reviewed contemporaneous state constitutions, post-enactment commentary, and subsequent case law to conclude that the purpose of the right to keep and bear arms extended beyond the context of militia service to include self-defense.

Using this “individual rights theory,” the Court struck down a District of Columbia law that banned virtually all handguns, and required that any other type of firearm in a home be dissembled or bound by a trigger lock at all times. The Court rejected the argument that handguns could be banned as long as other guns (such as long-guns) were available, noting that, for a variety of reasons, handguns are the “most popular weapon chosen by Americans for self-defense in the home.” Similarly, the requirement that all firearms be rendered inoperable at all times was found to limit the “core lawful purpose of self-defense.” However, the Court specifically stated (albeit in dicta) that the Second Amendment did not limit prohibitions on the possession of firearms by felons and the mentally ill, penalties for carrying firearms in schools and government buildings, or laws regulating the sales of guns. The Court also noted that there was a historical tradition of prohibiting the carrying of “dangerous and unusual weapons” that would not be affected by its decision. The Court, however, declined to establish the standard by which future gun regulations would be evaluated. And, more importantly, because the District of Columbia is a federal enclave, the Court did not have occasion to address whether it would reconsider its prior decisions that the Second Amendment does not apply to the states.

The latter issue was addressed in McDonald v. Chicago, where a plurality of the Court, overturning prior precedent, found that the Second Amendment is incorporated through the Fourteenth Amendment and is thus enforceable against the states. Relevant to this question, the Court examined whether the right to keep and bear arms is “fundamental to our scheme of ordered liberty” or “deeply rooted in this Nation’s history and tradition.” The Court, relying on historical analysis set forth previously in Heller, noted the English common law roots of the right to keep arms for self-defense and the importance of the right to the American colonies, the drafters of the Constitution. and the states as a bulwark against over-reaching federal authority. Noting that by the 1850s the perceived threat that the National Government would disarm the citizens had largely faded, the Court suggested that the right to keep and bear arms became valued principally for purposes of self-defense, so that the passage of Fourteenth Amendment, in part, was intended to protect the right of ex-slaves to keep and bear arms. While it was argued by the dissent that this protection would most logically be provided by the Equal Protection Clause, not by the Due Process Clause, the plurality also found enough evidence of then-existent concerns regarding the treatment of blacks by the state militia to conclude that the right to bear arms was also intended to protect against generally-applicable state regulation.

"Laws that forbid the carrying of arms disarm only those who are neither inclined nor determined to commit crimes. Such laws make things worse for the assaulted and better for the assailants." — Cesare Beccaria.

Twice last week, Barack Obama graced us with his pontification on both his fealty to the Second Amendment and his desire for "common sense" gun control measures. With the Left, however, those two things are mutually exclusive. He's merely repeating the siren song of every other socialist tyrant during the last one hundred years.

On Monday, Obama goaded Republicans to go along with his schemes. "If in fact everybody across party lines was as deeply moved and saddened as I was by what happened in Newtown," further gun control measures are the only reasonable solution, he concluded. Furthermore, "As far as people lining up and purchasing more guns," he said, "I think that we've seen for some time now that those who oppose any common sense gun control or gun safety measures have a pretty effective way of ginning up fear on the part of gun owners that somehow the federal government's about to take all your guns away. And, you know, there's probably an economic element to that. It obviously is good for business." He should know — he's the Gun Salesman Emeritus, presiding over the sale of 67 million guns in four years.

So to recap, if you don't support gun control, you hate kids, and if you're buying or selling guns, you're a greedy loon. Now who's ready for a rational discussion?

Then on Wednesday, Obama laid down the gauntlet. Of course, there was nothing new in what he proposed — he had it all on the shelf just waiting for the first post-election crisis to exploit. Using four children as human shields, he bravely strode to the lectern to outline 23 executive actions, adding a call for congressional action. There is nothing like basing policy on the opinions of eight-year olds who've been brainwashed in government schools. I wonder had he gotten several thousand letters from eight-year olds decrying abortion if he would have had them at the White House reading their letters. I think not.

Here is Obama’s list derived from the meeting of the masterminds of his committee headed by Joe Biden. I have added a few comments to Obama’s list:

1. Issue a Presidential Memorandum to require federal agencies to make relevant data available to the federal background check system.

2. Address unnecessary legal barriers, particularly relating to the Health Insurance Portability and Accountability Act (ObamaCare) that may prevent states from making information available to the background check system.

3. Improve incentives for states to share information with the background check system.

4. Direct the Attorney General to review categories of individuals prohibited from having a gun to make sure dangerous people are not slipping through the cracks. Remember Fast and Furious? And recall the DHS warning about right-wing extremists? For that matter, check out this week's report on "America's Violent Far-Right." Now raise your hand if you trust Eric Holder to determine who "dangerous people" are.

5. Propose rulemaking to give law enforcement the ability to run a full background check on an individual before returning a seized gun.

6. Publish a letter from ATF to federally licensed gun dealers providing guidance on how to run background checks for private sellers.

7. Launch a national safe and responsible gun ownership campaign.

8. Review safety standards for gun locks and gun safes (Consumer Product Safety Commission).

9. Issue a Presidential Memorandum to require federal law enforcement to trace guns recovered in criminal investigations.

10. Release a DOJ report analyzing information on lost and stolen guns and make it widely available to law enforcement.

11. Nominate an ATF director. This should have been done two years ago when the news of Fast and Furious broke. Then Obama also promised to nominate a permanent ATF director. We suggest one who won't supply "assault weapons" to murderous Mexican drug cartels.

12. Provide law enforcement, first responders, and school officials with proper training for active shooter situations.

13. Maximize enforcement efforts to prevent gun violence and prosecute gun crime.

14. Issue a Presidential Memorandum directing the Centers for Disease Control to research the causes and prevention of gun violence. This one is very troubling. It should be noted that such research isn't new, however. Timothy Wheeler, MD, director of Doctors for Responsible Gun Ownership, writes in The National Review Online:

"Memories are short. It was only 15 years ago that Congress cut off federal funding for the Centers for Disease Control’s gun research. Top CDC officials such as Patrick O’Carroll, M.D., had said things like “We’re going to systematically build a case that owning firearms causes deaths. We’re doing the most we can do, given the political realities.”

Nor was Congress pleased that the CDC had funded in the spring of 1995 a newsletter from the San Francisco gun-control group the Trauma Foundation. This newsletter advised “advocates” to “organize a picket at gun manufacturing sites” and to “work for campaign finance reform to weaken the gun lobby’s clout.” There’s no reason to believe the CDC will not again use taxpayer millions to pay for more anti-gun-rights pamphleteering.”

15. Direct the Attorney General to issue a report on the availability and most effective use of new gun safety technologies and challenge the private sector to develop innovative technologies.

16. Clarify that the Affordable Care Act does not prohibit doctors asking their patients about guns in their homes.

17. Release a letter to health care providers clarifying that no federal law prohibits them from reporting threats of violence to law enforcement authorities.

18. Provide incentives for schools to hire school resource officers.

19. Develop model emergency response plans for schools, houses of worship and institutions of higher education.

20. Release a letter to state health officials clarifying the scope of mental health services that Medicaid plans must cover.

21. Finalize regulations clarifying essential health benefits and parity requirements within ACA exchanges.

22. Commit to finalizing mental health parity regulations.

23. Launch a national dialogue led by Secretaries Sebelius and Duncan on mental health.

Next, Obama called on Congress to pass universal background checks and to ban so-called "military-style assault weapons" and standard-capacity magazines that hold more than 10 rounds. This defensive weapons ban faces a steep climb, however. Not withstanding Joe Biden's claims of "overwhelming consensus" on gun control, the GOP controls the House, and I don't believe even the spaghetti-spine Republicans in that chamber will consent to a ban. Then there's the Senate, where Democrats such as Max Baucus (MT), Mark Begich (AK) and even Al Franken (MN) are balking at, if not outright opposing, a ban. Mark Pryor (AR), Tim Johnson (SD), Kay Hagan (NC) and Mary Landrieu (LA) likewise face re-election in red states in 2014 and are probable "no" votes. Even Majority Leader Harry Reid (D-NV) doesn't seem to be a fan of Dianne Feinstein's gun ban. As reported in The Hill :

“Reid, a long-time opponent of a ban on assault weapons, suggested recently that he wouldn’t consider such a proposal in the Senate despite indications that the Obama administration might urge that prohibition after receiving the recommendations of Vice President Biden's gun-violence task force.”

Then the courts. Under the Supreme Court's Heller and McDonald rulings, the Second Amendment does, in fact, mean what it says -- it preserves the right of the people to keep and bear arms. The Court added that this meant arms in common use, which would include semi-automatic rifles like the AR-15.

The big lie is that Obama’s 23 measures are common sense measures. “They have the support of the majority of the American people. And yet that doesn't mean any of this is going to be easy to enact or implement. If it were, we'd already have universal background checks. The ban on assault weapons and high-capacity magazines never would've been allowed to expire. More of our fellow Americans might still be alive celebrating birthdays and anniversaries and graduations. This will be difficult. There will be pundits and politicians and special interest lobbyists publicly warning of the tyrannical all-out assault on liberty. Not because that's true. But because they want to gin up fear or higher ratings or revenue for themselves. And behind the scenes they'll do everything they can to block any common sense reform and make sure nothing changes whatsoever." — Barack Obama, demonizing those who would oppose his tyranny.

Nothing the president is proposing would have stopped the massacre at Sandy Hook. President Obama is targeting the 2nd Amendment rights of law-abiding citizens instead of seriously addressing the real underlying causes of such violence," Sen. Marco Rubio, R-Fla., said. "Rolling back responsible citizens' rights is not the proper response to tragedies committed by criminals and the mentally ill."

Sen. Charles Grassley, R-Iowa, said the proposals would merely invite "drawn-out court battles."

"Instead of a thoughtful, open and deliberate conversation, President Obama is attempting to institute new restrictions on a fundamental constitutional right," he said.

On the other side of this issue are pundits like Juan Williams of Fox News who in a recent op-ed stated that the President had the authority under Article II of the Constitution to enact executive orders infringing on the rights of citizens to own firearms of their choice. To support his position he cites President Lincoln’s issuance of the Emancipation Proclamation as his prime example. In his column Williams states:

“To be crystal clear: President Obama has the legal authority to enact gun safety measures through executive order. That is not a matter of opinion. It is a statement of fact. And there is historical precedent. Presidents have historically used this tool to implement a wide range of public policies that they believe to be in the best interest of the nation. The Emancipation Proclamation, for instance, was President Abraham Lincoln’s exercise of his executive order power to free slaves.”

I would remind Mr. Williams of his ignorance of American and Constitutional history that Lincoln’s executive order only referred to states in rebellion against the Union and did not have effect on the states remaining loyal to the Union. Under his authority as commander-in-chief during a time of war or rebellion Lincoln did have such authority under Article II.

The Emancipation Proclamation was an order issued to all segments of the Executive branch (including the Army and Navy) of the United States by President Abraham Lincoln on January 1, 1863, during the American Civil War. It was based on the president's constitutional authority as commander in chief of the armed forces; it was not a law passed by Congress. It proclaimed all those enslaved in Confederate territory to be forever free, and ordered the Army (and all segments of the Executive branch) to treat as free all those enslaved in ten states that were still in rebellion, thus applying to 3.1 million of the 4 million slaves in the U.S. The Proclamation could not be enforced in areas still under rebellion, but as the army took control of Confederate regions, the slaves in those regions were emancipated rather than returned to their masters. From 20,000 to 50,000 former slaves in regions where rebellion had already been subdued were immediately emancipated and over 3 million more were emancipated as the Union army advanced. The Proclamation did not apply to the five slave states that were not in rebellion, nor to most regions already controlled by the Union army; emancipation there would come after separate state actions and/or the December 1865 ratification of the Thirteenth Amendment, which made slavery illegal everywhere in the U.S. The Proclamation did not compensate the owners, did not itself outlaw slavery, and did not make the ex-slaves (called freedmen) citizens. It made the eradication of slavery an explicit war goal, in addition to the goal of reuniting the Union.

States and Territories affected by the Emancipation Proclamation

Lincoln’s Proclamation clearly states this:

"That the Executive will, on the first day of January aforesaid, by proclamation, designate the States and parts of States, if any, in which the people thereof, respectively, shall then be in rebellion against the United States; and the fact that any State, or the people thereof, shall on that day be, in good faith, represented in the Congress of the United States by members chosen thereto at elections wherein a majority of the qualified voters of such State shall have participated, shall, in the absence of strong countervailing testimony, be deemed conclusive evidence that such State, and the people thereof, are not then in rebellion against the United States."

Now, therefore I, Abraham Lincoln, President of the United States, by virtue of the power in me vested as Commander-in-Chief, of the Army and Navy of the United States in time of actual armed rebellion against authority and government of the United States, and as a fit and necessary war measure for suppressing said rebellion, do, on this first day of January, in the year of our Lord one thousand eight hundred and sixty three, and in accordance with my purpose so to do publicly proclaimed for the full period of one hundred days, from the day first above mentioned, order and designate as the States and parts of States wherein the people thereof respectively, are this day in rebellion against the United States, the following, to wit:

Arkansas, Texas, Louisiana, (except the Parishes of St. Bernard, Plaquemines, Jefferson, St. Johns, St. Charles, St. James, Ascension, Assumption, Terrebonne, Lafourche, St. Mary, St. Martin, and Orleans, including the City of New-Orleans) Mississippi, Alabama, Florida, Georgia, South-Carolina, North-Carolina, and Virginia, (except the forty-eight counties designated as West Virginia, and also the counties of Berkley, Accomac, Northampton, Elizabeth-City, York, Princess Ann, and Norfolk, including the cities of Norfolk & Portsmouth); and which excepted parts are, for the present, left precisely as if this proclamation were not issued.

And by virtue of the power, and for the purpose aforesaid, I do order and declare that all persons held as slaves within said designated States, and parts of States, are, and henceforward shall be free; and that the Executive government of the United States, including the military and naval authorities thereof, will recognize and maintain the freedom of said persons.

And I hereby enjoin upon the people so declared to be free to abstain from all violence, unless in necessary self-defense; and I recommend to them that, in all cases when allowed, they labor faithfully for reasonable wages.” (Emphasis added)

Lincoln issued the Proclamation under his authority as "Commander in Chief of the Army and Navy" under Article II, section 2 of the United States Constitution.[4] As such, he claimed to have the martial power to suspend civil law in those states which were in rebellion. He did not have Commander-in-Chief authority over the four slave-holding states that were not in rebellion: Missouri, Kentucky, Maryland and Delaware, and so those states were not named in the Proclamation. The Emancipation Proclamation was never challenged in court.

Article II, Section 2 states:

“The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session”

To ensure the abolition of slavery in all of the U.S., Lincoln pushed for passage of the Thirteenth Amendment. Congress passed it by the necessary two-thirds vote in February 1865 and it was ratified by the states by December 1865.

I would remind Mr. Williams that his ignorance of the Constitution and the Emancipation Proclamation is glaring. Williams writes with a progressive left-wing agenda based on the teachings of John Dewey — an agenda that believes the Constitution can be interpreted or changed by democratic means or consensus. According to Dewey If 50.1% of the citizenry believe government should do something that is reason for the executive to act. This is contrary to the Constitution and thinking of our Founders. Progressives such as Williams believe in the “administrative state” and are opposed to liberty and property — they are true statists who believe the Executive Branch has the authority to infringe, encroach, and modify the Constitution and Bill of Rights any time the polls or mood of the public moves them. I would also remind Mr. Williams that it was one of his progressive heroes, Franklin Roosevelt, who interned some 100,000 Japanese-Americans in “relocation camps” during World War II with his executive order 9066.

While a few of Obama’s 23 planned executive orders may seem reasonable and sensible it is not within his authority to use these powers if they infringe on the rights of the citizens.

As an aside it should be noted that since the Obama Administration began its attack on the Second Amendment in month the membership in the NRA increased by 250,000. It also should be noted that by this past weekend gun stores across the country have been sold out of all of their stock of firearms including hand guns, shotguns and AR-15 type rifles. These citizens are voting with their pocketbook to insure their rights.