The Principle of “Mutually Assured Destruction” vs The Dick Act and other 2nd Amendment myths
My listeners know I try to research stories and issues before I discuss or post, write or speak on various issues. I came across this article which I feel strongly answers the claims of those who want to use the Dick Act, or other strategies to proclaim invalidity of any attempt by the federal government to violate the 2nd Amendment.
I wholeheartedly agree with the author below. The issue here is not whether we have some magic bullet to prevent the federal government from subverting our rights under the 2nd Amendment; because it is already inviolate.
No court, including the Supreme Court has the power to limit that which emphatically and clearly states "..Shall Not Be Infringed". The author below poses very valid and legitimate arguments supporting that position, and I've taken the liberty to add a few of my own.
Further, she goes on to question why people continually feel the need to support or bolster a definitive statement already established with clear and plain language within the Constitution. Essentially it comes down to this; namely that we have been indoctrinated with the idea that any body, be it legislative or judicial can supersede the Constitution. We have become accustomed to think that because a court says it is so, it is. Nothing could be further from the truth. In fact, our framers emphatically stated that laws created outside the boundaries of the express and limited powers granted by the Constitution were invalidated even before the ink was dry.
If we, as supporters of the Constitution mean to uphold our unalienable rights, we must first change our way of viewing the authority of the courts, the legislature and the executive. They, independently or collectively have no more right to change the Constitution than I do with a unilateral declaration. You wouldn't accept my declaration as law, why do you accept theirs? We elected them to protect our rights, not diminish them, however good the sales pitch.
For the record, let me be clear. Neither congress in the legislative, the president via the executive, nor any courts, including the supreme court, have the ability to violate the Constitutional 2nd Amendment.... Unless we let them.... It is our responsibility to make it clear that any law limiting the Second Amendment for any reason, or by any means, is "Null & Void, and of No Effect". These are not my words, they are taken from none other than Thomas Jefferson and James Madison. They wrote the constitutional document itself, they explained in writing, very clearly exactly what it meant, and I believe them over any legislator, court or would be tyrant. You see, I've taken my words from the mouth of the horse itself. All restrictions of any kind are prohibited by the Constitution. Clearly, definitively, unequivocally and plainly obvious for all to see.
Ms. Harris makes reference in the latter part of her article below to the case of United States vs. Miller 1939. Her points are valid, but even if you accept that case as having precedent affect, pro-2nd Amendment supporters should be aware of what Miller does and does not say. I've read Miller, and you should too, if you fervently have an interest in this issue. You can find it here.
Firstly, because it is the case that is used to establish 'interstate-commerce' precedential control over firearms. If you believe that the founders would have been willing to accept the half-baked notion that, simply because a weapon travels from one state to another, that suddenly the principles of the Constitution are thrown out the window, perhaps you don't understand the rock solid principles of the Constitution yourself.
Secondly, I'll make the same strenuous point here that I made before. No entity, be it the legislative via congress, the judicial via the courts or the presidency via the executive can change the monolithic base principles of the 2nd Amendment. It was put in place to preserve the nation from tyranny and allow citizens to protect their country, their individual states, counties, cities, property, family and selves. No amount of legislation, judicial or executive action can intrude upon that right and duty.
Thirdly, for those who argue that the times are different, that the founders couldn't have known about 'machine guns', high-capacity magazines, (insert progressive self-destructive argument here); the simple response to that argument is below.
- If the enemy has that technology, the citizenry can, and should have it too. One cannot fight an enemy carrying a modern day semi-auto rifle with a flintlock rifle. Whether that enemy is foreign - as in national invasion, or domestic - as in a tyrannical state or federal government run amok. The principle was to have arms equal to the weaponry of the assailant.
- If the 2nd Amendment is invalidated by altered technology unavailable at the time of its' writing, then so to is the 1st Amendment. Is the media willing to ascribe to this theory when applied to the television, internet, iPad, radio, or other modern means of transmitting free speech? Would they be willing to accede to the argument that only printed papers and verbal speech have a corner on free speech? Are they willing to allow their 'bully-pulpit' to be infringed? I think not.
- Furthermore, the 1st Amendment is not even cut from the same granite as the 2nd. It says "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." Note the vastly stronger language of the 2nd Amendment, "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." The first addresses congress specifically, the second makes it clear that no infringement is acceptable. Infringe is defined by the following synonyms: Trespass, Invade, Overstep, Encroach, Intrude, Interfere, Impinge. In the comparison of the hardened structure of the 1st vs. the 2nd, note also the following; the first declared congress may make no law. The second doesn't even offer that shoe in the door. It it did, one could well argue that states might individually limit the first using the creative argumentation of the modern day politician.
Fourthly, the second amendment was principled upon what the founders could not possibly have articulated, namely the principle of Mutually Assured Destruction. MAD as we have come to call it, is the idea that an enemy of equal strength tosses a nuclear weapon over the pond and we reply with equal or greater force. It is a principle that acts as a deterrent to would-be attackers since that attack would result in their destruction as well. But note that it applies to enemies of equal armaments. No one considers the principle of MAD to apply between the US and say, Zimbabwe.
However, the founders could not articulate such an idea because no such weapons existed at that time, but make no mistake about it, for things to get to the point where citizens were forced into domestic deployment of the 2nd Amendment as the only alternative left to preserve liberty, it would be a willful deployment of Mutually Assured Destruction. Willful and precipitated by the government. Resulting in no less than the destruction of our Union, our Nation and our form of government. Like the arms races of modern times, these devices and the principle of MAD, whether in the hands of nations or citizens are never intended to be used for their created purpose. If however, our nation should fall to the totalitarian or slide into the tyrannical, for whatever reason, We The People have an obligation and a duty to rise up and preserve liberty, freedom, and life itself.
The principle of MAD however, only works when two enemies are of equal strength. It cannot work if one side is not equally armed regardless of the technology employed. Consider the analogy of a nation such as Venezuela attempting to use such a principle against us. It has no nuclear weapons to deter such a threat. The nations are unequally yoked in the weaponry class. They could no more deter the US from an invasion and the inevitable subjugation of their nation than could Germany, France or Italy. Forget world opinion and economic factors for a moment, because tyranny does not take those factors into account. If the US wanted to take any of the aforementioned states or nations by force, there would be little that they could do under the threat of a massive dump of nuclear detonations obliterating their respective nations. Now consider that same scenario with Russia or China who does possess equally yoked nuclear armaments. It would be suicidal for the US to attempt such an invasion.
I know, the minions of 'god-as-state' will throw out all manner of illogical and emotional arguments. The simple truth of the matter is this: The national government will not use nuclear weapons on the domestic nation because it would be suicide. Therefore any tyranny perpetrated on US soil will be small arms conflict. For the record, the economic, moral, ethical and societal conflicts are over and we've already lost. So our only concern should be that of physical joined battle at this point. And so we come back to the founders and their understanding of the principles of MAD.
The idea that the 2nd Amendment can be marginalized or deteriorated to deter criminals from obtaining weapons never even enters the room. The founders/framers were not addressing that issue, because that issue is dealt with via the basic rule of law that congress does indeed have the power to address. Their only goal in delineating the 2nd as a bedrock of the Constitution was to first provide a MAD deterrent and if that failed, to enable citizens to fight back against open tyranny itself.
Citizens have the right to own armaments equal in strength, power and substance as those which will be used against them in a physical battle. Period.
Now that the 'god-state' clan is apoplectic, let me make it abundantly clear. At our present time, in our present state of decline in the constitutional principles of the bedrock of man's natural rights, and our delineated unalienable rights, we are at a time when any deterioration of our 2nd Amendment is unacceptable. Any attempt by any entity of whatever stripe to limit, deter, infringe, trespass, invade, overstep, encroach, intrude, interfere, or impinge upon that right, should be met with disobedience.
It was always meant to be so... we just have failed to exercise that which we already possess. - Michael Evans]
The Dick Act is Not the Gun-Control Holy Grail
By Amber Harrison Originally posted here.
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.