Who Determines Your Constitutional Rights?

“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…” Declaration of Independence, 1776

In yesterday’s blog I talked about the case for the Constitution. Today a report has surfaced that demonstrates just how far our political leaders and civil servants have strayed from the Constitution and our unalienable rights of Life, Liberty and the Pursuit of Happiness. It is a chilling example of how elite statists and masterminds are willing to bypass our fundamental rule of law to advance their progressive agenda.

In this recent and most egregious example Chicago’s Chief of Police, who previously blamed ”government-sponsored racism” and Sarah Palin for Chicago’s gun violence, declared that the lawful exercise of the Second Amendment was a threat to public safety. According to a report by the Illinois State Rifle Association:

“Chicago's embattled police superintendent dug himself deeper into a pit of controversy today by claiming that lawful firearm owners are agents of political corruption. Appearing on a Chicago Sunday morning talk show, superintendent Garry McCarthy expressed his conviction that firearm owners who lobby their elected representatives or who donate money to political campaigns are engaged in corruption that endangers public safety. McCarthy went on to express his belief that judges and legislators should rely on public opinion polls when interpreting our Constitution.

After totally dismissing the citizen's right to redress grievances, McCarthy trained his constitutional wisdom on the 2nd Amendment. Despite recent court decisions to the contrary, McCarthy opined that the 2nd Amendment limits citizens to owning smooth-bore muskets. McCarthy went on to say that he believes that the 2nd Amendment supports mandatory liability insurance for firearm owners and the mandatory application of GPS tracking devices to civilian owned firearms.”

"Garry McCarthy's understanding of our Constitution barely qualifies him as a meter maid, never mind the chief of the nation's third largest police department," commented ISRA Executive Director Richard Pearson. "What on earth would possess McCarthy to assert that constitutional rights should be meted out based on public opinion polls? Let's not forget that public opinion polls once opposed a woman's right to vote while it would be a safe bet that, at one time, polls would have shown lynching as an acceptable form of justice. It has been said that our Constitution exists to protect the minority from the tyranny of the majority. McCarthy's view of our Constitution is dangerous and unbecoming of a civil servant."

There are several statements by Mr. McCarthy that, as the ISRA report state, that are not only chilling, but downright indicative of the ignorance of today’s progressives on the words and meaning of the Constitution and our God given rights.

McCarthy’s assertion that constitutional rights should be meted out based on public opinion polls is absolutely asinine and dangerous. According to a recent Rasmussen poll 65% see gun rights as protection against tyranny:

“Two-out-of-three Americans recognize that their constitutional right to own a gun was intended to ensure their freedom.

The latest Rasmussen Reports national telephone survey finds that 65% of American Adults think the purpose of the Second Amendment is to make sure that people are able to protect themselves from tyranny. Only 17% disagree, while another 18% are not sure. (To see survey question wording, click here.)

Not surprisingly, 72% of those with a gun in their family regard the Second Amendment as a protection against tyranny. However, even a majority (57%) of those without a gun in their home hold that view.

Many gun control advocates talk of the right to gun ownership as relating to hunting and recreational uses only.

While there are often wide partisan differences of opinion on gun-related issues, even 54% of Democrats agree with 75% of Republicans and 68% of those not affiliated with either major party that the right to own a gun is to ensure such freedom.

As Americans search for answers to the Newtown shooting, attitudes on gun ownership are “not likely to change in a nation where six out of 10 adults would rather live in a neighborhood where they can own a gun and most would feel safer if their children attended a school with an armed security guard.”

If McCarthy’s assertion that our constitutional rights should be determined by public opinion polls were followed abortion would be banned, there would be no gay marriage, and we would have unlimited school vouchers. Perhaps you agree with all of these examples, as I do, but we live in a representative republic where we elect representatives to pass laws and regulations that are constitutional. What Mr. McCarthy is advocating is a mobocracy — something that terrified our Founders.

As George Washington stated in his farewell address of 1796:

“Respect for its authority, compliance with its laws, acquiescence in its measures, are duties enjoined by the fundamental maxims of true liberty. The basis of our political systems is the right of the people to make and to alter their constitutions of government. But the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all. The very idea of the power and the right of the people to establish government presupposes the duty of every individual to obey the established government.”

Obviously Mr. McCarthy as a high ranking official has expressed a prejudice against law-abiding citizens from an official who has the authority to arrest and give orders to fire at them.

McCarthy’s assertion that the Founders limited arms to smooth bore muskets is demonstrably false as well.

Let’s begin our rebuttal of McCarthy’s assertion with a look at Article I, Section 8.16 of the Constitution that states:

“To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;”

This clause in the Constitution gave Congress the authority to organize a well regulated militia. But what exactly is a “well-regulated militia”? To further define this term Congress, under the authority of Article I, Section 8.16 passed the 1792 Militia Act. The Militia Acts of 1792 were a pair of statutes enacted by the second United States Congress in 1792. The acts provided for the organization of the state militias and provided for the President of the United States to take command of the state militias in times of imminent invasion or insurrection. This authority was used to suppress the Whiskey Rebellion in 1794. This act stated:

“Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act. And it shall at all time hereafter be the duty of every such Captain or Commanding Officer of a company, to enroll every such citizen as aforesaid, and also those who shall, from time to time, arrive at the age of 18 years, or being at the age of 18 years, and under the age of 45 years (except as before excepted) shall come to reside within his bounds; and shall without delay notify such citizen of the said enrollment, by the proper non-commissioned Officer of the company, by whom such notice may be proved. 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 is noted that Congress demanded the arms of the day for the militia. This was a key element in the act. You will note that the Act prescribed either a good musket or a rifle — two distinct and different firearms.

Many anti-Second Amendment advocates use the silly argument that the Founding Fathers’ intent is anachronistic since they couldn’t envision greater weapons capability beyond muskets in their time. Really?

This is easily disproven simply noting the evolution of firearm technology during the time prior to, and during, the Revolution. Matchlit progressed into matchlock, which progressed into flintlock and so forth. In fact, muskets were slowly being replaced by long rifles during the time of, and after the Revolution. Rifling gave shots increased accuracy over greater distances. Nock guns were the arms of choice for the British Navy, an experiment of sorts that lasted a short time because the recoil was powerful enough to break the shoulder of those firing them. In 1718 the “Puckle gun,” the first machine gun, appeared. (One could argue that the so-called “assault rifle pre-dated the Second Amendment.) The Colt revolver followed not long after and in the late 1800s the Gatling gun, which fired 200 rounds per minute, appeared on the market. The evolution of firearms was observable during the time that the Constitution was drafted; to argue that the Founding Fathers were unaware of, or not living through, the ever-evolving capabilities of firearms is blatant ignorance of both common sense and fact. Jefferson himself was a noted collector and in letters explained what technological capabilities he favored in pieces over others in his collection.

The Founders were quite clear on their views regarding firearms. In fact, earlier proposed language of the Second Amendment read as such:

“And that the said Constitution be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms.”

From Jefferson’s drafts of the Virginia constitution:

“No freeman shall ever be debarred the use of arms.”

Other figures of the period were of like mind. In the Virginia convention, George Mason, drafter of the Virginia Bill of Rights, accused the British of having plotted “to disarm the people–that was the best and most effective way to enslave them”, while Patrick Henry observed that “The great object is that every man be armed” and “everyone who is able may have a gun.”

Following the Civil War, the legislative efforts which gave us three amendments to the Constitution and our earliest civil rights acts likewise recognized the right to keep and bear arms as an existing constitutional right of the individual citizen and as a right specifically singled out as one protected by the civil rights acts and by the Fourteenth Amendment to the Constitution, against infringement by state authorities. This is called the doctrine of incorporation and has been used by the Supreme Court today to strike down gun control laws in Washington D.C. and McCarthy’s home town of Chicago.

Much of the reconstruction effort in the South had been hinged upon the creation of “black militias” composed of the armed and newly freed blacks, officered largely by black veterans of the Union Army. In the months after the Civil War, the existing southern governments struck at these units with the enactment of “black codes” which either outlawed gun ownership by blacks entirely, or imposed permit systems for them, and permitted the confiscation of firearms owned by blacks. When the Civil Rights Act of 1866 was debated members both of the Senate and the House referred to the disarmament of blacks as a major consideration.

Some point to the list of requirements in the Second Militia Act as evidence that Congress has, in fact, required its citizens to purchase a good or service. The Second Militia Act of 1792 indeed 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.” Since the Second Congress passed the Second Militia Act that requires members of the militia to procure a musket and bullets, it is therefore suggested that the Founders (and the Constitution) would also have supported the recent health care bill that requires all members of society to purchase health insurance. Support of the Second Militia Act does not imply support for the health care bill.

Unlike the reach of the health care bill, the Second Militia Act applies to a narrow sub-section of society: white, male citizens between the ages of eighteen and forty-five who are members of the militia. Section I of the Act, which includes the list of required goods, begins: “Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia.” It follows that the Second Militia Act would not apply to anyone not enrolled in the militia: including non-citizens, the infirm, men younger than eighteen, men older than forty-five, or women.

Section II of the Act further exempts a whole host of men, despite fitting the age and fitness requirements, from participating in the militia and therefore the requirement of procuring muskets, bullets, and other such items pertaining to militia service. Specifically exempted from the militia are the Vice-President of the United States, judicial and executive officers, members of the House and Senate, post officers, certain ferry officers and stager drivers to name a few. Moreover, the language of the statute requires to a member of the militia “provide himself” with the list of goods. It is possible that a man could have inherited a musket, bartered for a knapsack, or made his own bullets, and still be in compliance with the Act. In contrast to the Second Militia Act, the health care bill applies to any living breathing person in America (except maybe top Hill staffers) to purchase health insurance. It is unlikely one could inherit, barter, or create one’s own health insurance and avoid the penalty of law.

The greatest difference between the health care bill and the Second Militia Act is constitutionality. There is solid constitutional basis for the Second Militia Act: Article I, section 8, clause 16 states that Congress has the power “To provide for organizing, arming, and disciplining the Militia, and for governing such part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.” Articulating a list of goods required for militia service is certainly within the bounds of this clause. Indeed, Federalist 29 emphasizes that such regulation of the militia is part of “superintending the common defense, and of watching over the internal peace of the Confederacy.”

Then there are those progressives that claim the militia is defined today as the National Guard. This is blatantly false. In a Report of the Subcommittee on the Constitution of the Committee on the Judiciary of the United States Senate of the Ninety-Seventh Congress entitled The Right To Keep And Bear Arms:

“The Second Amendment right to keep and bear arms therefore, is a right of the individual citizen to privately posses and carry in a peaceful manner firearms and similar arms. Such an "individual rights" interpretation is in full accord with the history of the right to keep and bear arms, as previously discussed. It is moreover in accord with contemporaneous statements and formulations of the right by such founders of this nation as Thomas Jefferson and Samuel Adams, and accurately reflects the majority of the proposals which led up to the Bill of Rights itself. A number of state constitutions, adopted prior to or contemporaneously with the federal Constitution and Bill of Rights, similarly provided for a right of the people to keep and bear arms. If in fact this language creates a right protecting the states only, there might be a reason for it to be inserted in the federal Constitution but no reason for it to be inserted in state constitutions. State bills of rights necessarily protect only against action by the state, and by definition a state cannot infringe its own rights; to attempt to protect a right belonging to the state by inserting it in a limitation of the state's own powers would create an absurdity. The fact that the contemporaries of the framers did insert these words into several state constitutions would indicate clearly that they viewed the right as belonging to the individual citizen, thereby making it a right which could be infringed either by state or federal government and which must be protected against infringement by both.

Finally, the individual rights interpretation gives full meaning to the words chosen by the first Congress to reflect the right to keep and bear arms. The framers of the Bill of Rights consistently used the words "right of the people" to reflect individual rights--as when these words were used to recognize the "right of the people" to peaceably assemble, and the "right of the people" against unreasonable searches and seizures. They distinguished between the rights of the people and of the state in the Tenth Amendment. As discussed earlier, the "militia" itself referred to a concept of a universally armed people, not to any specifically organized unit. When the framers referred to the equivalent of our National Guard, they uniformly used the term "select militia" and distinguished this from "militia". Indeed, the debates over the Constitution constantly referred to organized militia units as a threat to freedom comparable to that of a standing army, and stressed that such organized units did not constitute, and indeed were philosophically opposed to, the concept of a militia.

That the National Guard is not the "Militia" referred to in the second amendment is even clearer today. Congress has organized the National Guard under its power to "raise and support armies" and not its power to "Provide for organizing, arming and disciplining the Militia". [65] This Congress chose to do in the interests of organizing reserve military units which were not limited in deployment by the strictures of our power over the constitutional militia, which can be called forth only "to execute the laws of the Union, suppress insurrections and repel invasions." The modern National Guard was specifically intended to avoid status as the constitutional militia, a distinction recognized by 10 U.S.C. Sec 311(a). (Emphasis added)

The conclusion is thus inescapable that the history, concept, and wording of the second amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half-century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner.”

If Mr. McCarthy wants to curtail the crime and killings in Chicago he should look at the causes this problem and not at guns. It would be tantamount to banning cars because there are drunken drives killing and maiming people with their automobiles.

The real cause of the gun violence in Chicago, as it is in other major metropolitan areas is the culture that has been fostered by progressive policies of the past 50 years.

According to an article in the Christian Post:

“Studies show that about 40 percent of children in the U.S. have absent fathers, a condition which Rutledge called an "epidemic." Children who grow up in fatherless homes are twice as likely to be incarcerated, 63 percent of youth suicides are from fatherless homes and 71 percent of all high school dropouts are from fatherless homes, according to statistics.”

Despite having some of the toughest gun laws in the nation, Chicago saw more than 500 homicides last year for the first time since 2008, and some 43 murders took place in January. That has prompted several pro-gun rights groups to say it proves new gun control measures aren’t the answer.

Even President Obama addressed this issue on his recent visit to his home town. Today 70% of babies born to African-American women are born out of wedlock. This is the real problem and the cause of much of the gang activity in Chicago and other urban centers. It’s not guns. The guns these gang members use to kill with are in the most part illegal. If Mr. McCarthy wants to address the high murder rate in Chicago he and other civic leaders need to address the cultural issues of fatherless homes and the continuing out of wedlock births.

Glenn Fairman writes in American Thinker:

“Without the anchor of a moral center, politics and culture move in tandem to and fro inexorably like a living pendulum — first migrating to one extreme at a glacial velocity and always alighting on the tempting antipode that evades moderation like a drunken man heading homeward. The victim in these cultural mood swings of political perception is always truth: whose tragic wreckage is caused both by the consequences of our destructive philosophies and the haunting desire to salvage whatever intellectual pride we have left, once our idols have come crashing down upon us.

While in the newspapers or on television you will not be informed about it in a form that makes sense, a growing cancer of racially-based violence is metastasizing in our cities. Moreover, unless you were to see these outrages first hand or in media outside the mainstream organs, you would know nothing of it — for it is being withheld from you. For reasons that we may want to speculate on, the news media have made an overt decision to avert your eyes away from the stone cold reality that a spectrum of young black men and women, motivated by race, rage, or entertainment, are increasingly committing crimes against life and property by the medium of flash mob violence.

From Oregon and Washington to New Jersey, packs of youth are targeting markets, shoe stores, county fairs, beach walks, and city parks in conducting brazen crimes by overwhelming police and security who find themselves increasingly unable to counter the element of surprise and viciousness that goes hand in hand with this phenomenon. As a result of this, brutal beatings of whites and Asians have become commonplace occurrences, resulting in public facilities being closed down to traffic as roving hordes materialize and vanish into the night like specters. And yet, the 900 pound gorilla in the room (that no one will dare look in the eye) is that there is an unassailable racial component involved. Furthermore, in the interest of multicultural harmony, cities which have long been in the clutches of Democratic political machines have lulled themselves to become anxiously oblivious to the mayhem. Because of this, those molders of opinion have taken to calling a serpent a stallion in hopes that the world, in turn, would also close its eyes.

In speaking to this epidemic of interracial mob beatings, robberies and maimings, Colin Flaherty's 2012 book, "White Girl Bleed a Lot:" The Return of Racial Violence and How the Media Ignore it, offers an exhaustive account of this racial brand of violence. Moreover, it charts the reprehensible actions of: police chiefs, intellectuals, and media editors to sweep the undeniable racial aspects underneath the rug. In the media accounts of these crimes, rarely are the races of the perps and the victims given, except in the rare instances where blacks are on the receiving end of the injustice. Only then does unholy hell breaks loose as the usual coterie of racial extortionists flood the airwaves with their travelling Dog and Pony Shows of white racial condemnation. Rather than face the fact that an urban pandemic of this brand of violence, theft, and robbery is tantamount to a subculture gone amok, the newspeak term generally applied towards these perpetrators is simply "youth." If, however, one scans the areas wherein these incidents occur or views the ubiquitous You-Tube videos, often posted by the assailants themselves, the shocking images provide the necessary information as to their salient identities.

While the media remain intent on echoing the drum beat of white America's persistent Jim Crow mentality or the perpetual congenital debt owed to African Americans for past discrimination, the pendulum has nevertheless swung Left to rationalize or diminish this reversed incarnation of racial violence. And as the racial component of this wilding is dismissed as uninteresting by the Usual Suspects, for he who has eyes to see, it is a direct consequence of a volcanic hatred that has been brewed from a well-cultivated array of cultural grievances. Grievances kept enflamed by liberal narratives of a divided society kept perpetually at war.

If one looks to the 2011 FBI crime statistics, one notices that whites (Hispanics included) make up 78.1% of the U.S. population while Blacks comprise 13.1%. By race, blacks commit 45% of their crimes against whites while 43% target fellow blacks and 10% of their victims are Hispanic. when Whites commit violent crime, only 3% of their victims are black. By considering these crimes as a percentage of the population at large, blacks are an estimated 39 times more likely to commit a violent crime against whites than vice versa and 136 times more likely to commit robbery.

…

Holding a segment of a population to a lesser standard by excusing them from the burden of responsible conduct is the apex of pathological discrimination. This is akin to pronouncing a people exempt from accountability and thereby condemned to a state of ethical incoherence and perpetual adolescence. Moreover, by knowingly obfuscating the truth behind this novel form of racial wilding, government and civil society give assent to a volitional blindness that becomes outraged only when a pre-certified pack of wolves devour innocent sheep. In the end, those minorities afflicted by this Progressive ethical cancer are themselves revictimized as a result of liberal society's cowardice in feeding a Frankenstein-like evil they have wrought with their own hands. Through the recurring injustice of denial, such lives are again fated to be crushed by that blind pendulum whose bitter inertia truth would not forestall.”

One way of addressing this issue is to stop the progressive policies of the past 50 years of aid to dependent children, welfare, and the myriad other Great Society programs that are the real cause.