Selected Columns Published in
GUNS & AMMO MAGAZINE
by Chuck Klein
Index
JUDICIAL ACCOUNTABILITY and the SLIPPERY SLOPE (May 1999)
GUN SHOWS AND HOW THE GOVERNMENT "DISPARAGES" OUR RIGHTS (Aug 1999)
AN AMERICAN HERO: Winning a Gun Rights Battle (Sep 2000)
IS THE SECOND AMENDMENT BLACK & WHITE OR GRAY?
Using Unwritten Laws to our Advantage (Feb 2001)
DEFINITIONS - EVEN THE CONSTITUTIONALLY CHALLENGED CAN UNDERSTAND (May 2000)
Part I: WHO WANTS TO BE A KNOWLEDGEABLE CITIZEN?
Can You Pass The Test? Can Your Elected Officials? (Jun 2001)
Part II: WHO WANTS TO BE A KNOWLEDGEABLE CITIZEN?
Can You Pass The Test? Can Your Elected Officials? (Jul 2001)
SEMANTICS: WHAT WORDS DON'T THE ANTI'S UNDERSTAND? (Sep 2001)
WHOSE RIGHT IS IT: What does the 2nd Amendment really say? (Jan 2002)
TAKE CHARGE AND APPLY THE CONSITITUTION YOURSELF
The Truth Behind Jury Nullification (Oct 1998)
BLACK IS BLACK: Unless You're Comprendo-Challenged (Mar 2002)
IS IT TIME FOR A NEW AMENDMENT? (Jun 2002) This 28th Amendment proposal was also published in an updated version in March 2019 issue of The Gun Mag.
THE MEANING OF 'AMERICA' (Sep 2002
ORGANIZED RESISTANCE
Here are Four Pro-gun Teams You Should Consider Joining (Jan 2003)
THE CRITICAL QUESTION: Is there such thing as reasonable gun control? (Apr 2003)
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TAKING CHARGE:
CHALLENGING CONSTITUTIONALITY OF GUN LAWS
Published in Guns and Ammo Magazine, February 1998.
© CHUCK KLEIN, 1998
Judges [all of which are attorneys - first] often resist declaring a law unconstitutional even if that law is obviously in direct conflict with a state or the Federal Constitution. One of the reasons is basic human insecurity - the apprehension that follows reproach by other judges or law makers [most of whom are attorneys]. Over-ruling or declaring a law unconstitutional is a direct slap in the face to the attorneys who wrote and/or previously decided the subject law.
When it comes to Second Amendment to the U.S. Constitution type challenges there are three additional reasons why judges are reluctant to defy the status quo:
* US v. THEM: I'm a judge and most of my friends are either other judges, prosecutors or law enforcers - all of which have the right to own and carry guns. We don't want common people to have the same right.
* PSEUDO DO-GOODER: I believe all guns are bad and therefore will resist any argument, no matter how well made, that promotes use or possession of any firearm.
* ELITIST ATTITUDE: .jpg)
Being financially secure I can afford a home in a crime free neighborhood, security systems, cell phone for my new [trouble free] car, and my work place is well guarded by armed officers. Therefore I don't need a gun for protection and since I don't need one, then no one else should be allowed to have one.
In matters of constitutional challenge and when Judges resort to decisions based on the above reasons, it is well within the prerogatives of a jury to compare a statute to constitutional meaning and intent. The legal term for this exercise of a jury's right and power is Jury Nullification. In other words the jury, even if it means disregarding the instructions of the sitting judge, may rule on the constitutionality of the subject law - they may nullify the law that breaches a state or the Federal Constitution.
In 1972 a federal court was asked to include Jury Nullification in its instructions to the jury [U.S. vs DOUGHERTY 473 F.2d 1113-1137]. The court said [pg 1134] "To encourage individuals to make their own determinations as to which laws they will obey and which they will permit themselves as a matter of conscience to disobey is to invite chaos. No legal system could long survive if it gave every individual the option of disregarding with impunity any law which by his personal standard was judged morally untenable." On page 1137, the court spelled out its reason for not advising a jury of its rights & powers of Jury Nullification, "An explicit instruction to a jury conveys an implied approval that runs the risk of degrading the legal structure...."
THE GOOD NEWS:
This same court [pg 1136, 1137] went on to say a jury may, "...itself identify the case as establishing a call of high conscience, and independently initiate and undertake and act in contravention of the established instructions." The clear message: the court will not encourage the jury to exercise constitutional review out of fear that to do so will open the doors to misuse and usurpation of a nation of laws. While on the other hand the court honors a jury that invokes, independent of the court's instruction, this well established right of Jury Nullification.
DOUGHERTY only rules out instructions for Jury Nullification by judges. A judge's instruction to the jury almost always includes words to the effect that the jury's duty is to determine the facts in the case and apply these facts to the law, as defined by the judge. No problem, just have your attorney tell the jury about Jury Nullification. Wrong! Attorneys, being officers of the court, may not encourage a jury to contradict a judge's instruction to the jury. This precedent has been well entrenched since the 1895 case of SPARF and HANSEN v. U.S. [156 U.S. 102,], Here the U.S. Supreme court ruled: "But upon principle, where the matter is not controlled by express constitutional or statutory provisions, it CANNOT be regarded as the RIGHT OF COUNSEL to dispute before the jury the law as declared by the court" [emphasis added].
However, these controls on attorneys are not applicable to statements made pro se [acting as one's own attorney] as acknowledged by DOUGHERTY [pg 1137]: "Thus, a defendant's ability to present his demeanor and often even a kind of testimony, without exposure to impeachment or cross-examination, may be a tactical consequence of pro-se representation, and even a moving cause of its invocation...."
For a jury to nullify a certain law because they don't like the law or feel the law is morally wrong is a violation of a juror's duty. NEVERTHELESS, JURORS ARE OBLIGATED, WHEN ADDRESSED DURING SUMMATION, TO DECLARE A LAW NULLIFIED IF IN FACT THEY, THE JURORS, FIND THE LAW VIOLATES, OR IS NOT IN ACCORDANCE WITH, THE CONSTITUTION.
COMPARATIVE EXAMPLE:
There are many state and federal laws that have yet to be challenged on a question of constitutionality. One example, with suggested arguments to expose the statutory/constitution conflict, is found in Ohio's carrying concealed weapon laws. The Ohio Revised Code, 2923.12 Carrying Concealed Weapons, is in direct conflict with Article 1, Number 4, of The Constitution of the State of Ohio. For this example the reader is urged to pay particular attention to the structure of how a challenge to the constitution develops. It is imperative that case law be researched, words be defined and objections be aimed at the conflict between the statute and the constitution. Just because a law is unfair or "bad" doesn't mean it is unconstitutional. Note: The Ohio Legislature, concerned about constitutional challenges to ORC 2923.12, is currently considering a "Flordia type" permit system for those who wish to carry a concealed weapon.
DESCRIPTION OF THE LAW:
Most states have a bill or rights in their constitution and many have self protection guarantees. Ohio's Article 1, Titled the BILL OF RIGHTS, outlines rights guaranteed citizens of the State of Ohio. Right Number 4, describes self defense rights and limitations of power, to wit:
"THE PEOPLE HAVE THE RIGHT TO BEAR ARMS FOR THEIR DEFENSE AND SECURITY; but standing armies, in time of peace, are dangerous to liberty, and shall not be kept up; and the military shall be in strict subordination to the civil power."
DEFINITIONS OF TERMS AND WORDS:
Merriam Webster's 9th New Collegiate Dictionary, the standard and most popular dictionary in The United States, has a publishing history pre-dating the Ohio Constitution. This icon of reference is noted for its accuracy and use of clear and unambiguous language. The key words, ARMS, BEAR, SECURITY, in the first clause of Article 1, #4, are defined by Merriam Webster as follows:
* "ARM n 1 a: a means [as a weapon] of offense or defense; esp: FIREARM." [emphasis theirs].
* "BEAR vb 1 a: to move while holding up and supporting b: to be equipped or furnished with."
* "SECURITY n 1: the quality or state of being secure: as a: freedom from danger: SAFETY b: freedom from fear or anxiety."
CONSTITUTIONAL INTENT:
In 1836, fifteen years before the creation of the Ohio Constitution, Samuel Colt ushered in the modern era of combat handgunery with the multi-shot revolver. It should be obvious that the framers of this foundation of Ohio law recognized the need for self protection. The Ohio Constitution, under Article 1, Number 4, guarantees Ohioans that they shall be permitted to:
* MOVE WHILE HOLDING UP AND SUPPORTING - TO BE EQUIPPED WITH;
* MORE THAN ONE FIREARM;
* FOR THE EXPRESS REASONS OF DEFENSE AND;
* TO BE FREE OF DANGER, FEAR AND ANXIETY.
STATUTORY VIOLATIONS:
Ohio Revised Code, 2923.12, currently reads in part:
"No person shall knowingly carry or have, concealed on his person or concealed ready at hand, any deadly weapon or dangerous ordnance."
CASE NOTE: "Under section, prohibiting carrying of weapon concealed on or about person, words "on" and "about" were not intended to be used as interchangeable terms, but word "on" means connected with or attached to, while "about" means near by, close at hand, in reach of." [28 App 248, 162 NE 647, SCHRAEDER v. STATE];
COMMENT: The law in very clear and supported by a court decision that whether the weapon is carried openly or hidden from view it is considered concealed. This is a blatant violation of the Ohio Constitution. However, in an attempt to get around this obvious infringement the law goes on to allow those found carrying a concealed weapon a set of very restrictive excuses - the affirmative defensive.
"It is an affirmative defense to a charge under this section of carrying or having control of a weapon...that the actor was not otherwise prohibited by law from having the weapon, and that any of the following apply":
CASE NOTE: "When state had proved that the defendant had weapon in his control, burden was on defendant to prove that he was JUSTIFIED in carrying it." [emphasis added] [42 App 501, 182 NE 534, HART v. STATE and 121 Os 280, 168 NE 135, PORELLO v. STATE];
COMMENT: The permitting of excuses ["justification" - "reasonable causes"] only sets up an arbitrary and capricious, "good-ol-boys" type of enforcement. The Ohio Constitution does not require that a person need "reasonable cause" or "justification" to carry a firearm for protection. The constitution, in unambiguous common words, says any PERSON [prudent or not] need only to desire to BEAR [move about while holding up and supporting, i.e., carrying in a holster] ARMS [plural] for want of DEFENSE or SECURITY [as defined by the common language]. Therefore, the Ohio law known as ORC 2923.12 is unconstitutional.
CONCLUSION:
Constitutions, whether they are national or state, are the basis for all statues - not the other way around. Constitutions are the supreme law and do not have to conform to statutes! Ohio's statute, ORC 2923.12, changes the meaning of and deletes certain rights granted Ohioan's by their constitution and is thus unconstitutional.
If the people of the United States, or of any state, wish to add further encumbrances or qualifications to certain constitutional guarantees, the way to do so is by amending the Constitution - not by executive order, statute or bureaucratic decree.
Other weapon's laws that might be successfully challenged via the Jury Nullification tactic include the Federal ban on possession of a firearm in certain locations or under certain conditions, retroactive [ex post facto] section of the Federal Domestic Abuse Act or any of the many oppressive weapons laws in New Jersey, New York and other states.
Because judges have little incentive to overturn gun laws, and lawyer's hands are tied in certain matters, the ordinary citizen must take charge when unalienable Rights are at stake. Should the reader find him/herself charged under an unconstitutional law, he/she might:
* Demand a jury trial;
* Secure an attorney familiar with the subject law [the NRA offers a gun-knowledgeable lawyer referral service to its members];
* Study related cases and applicable constitutions and their histories.
* If your attorney is unable to suggest to your jury the rule of Jury Nullification, you might consider terminating his services at the point that he rests your case. Then, acting pro se, you may address the jury, during summation, and enlighten them on their right and power of Jury Nullification. Be advised that this is not a panacea and that, like any matter before a jury, there are no guarantees. Also, expect [prepare for] challenges to your summation by the Judge and by the prosecutor.
~~~~~~~~~~~~
Other related cases and writings pertaining to Jury Nullification: DUNCAN v. LOUISIANA, 391 U.S. 145, 156, 88 S.Ct. 1444,1445, 20 L.Ed.2d 491 (1968) - fear of unchecked power; Kalven & Zeisel, The American Jury pub. Little, Brown (1966) juries tendency to disregard judges instructions due to lenity and empathization; E. g. Scheflin, Jury Nullification: The Right To Say No, 45 So.Calif.L.Rev. 168, 182 (1972); Howe, Juries as Judges of Criminal Law, 52 Harv.L.Rev. 582 (1939); e.g. STATE v. BURPEE, 65 Vt. 1, 34-35, 25 A. 964, 974 (1892); Judge Rifkind's comments in Follow-up/The Jury, Center Magazine, 64-65 (July 1970).
The jury does and always has had, in the words of Justice Holmes, "the power to bring in a verdict in the teeth of both law and facts" [Horning v. District of Columbia, 254 U.S. 135, 138, 41 S.Ct. 53,54,65 L.Ed. 185 (1920)].
"The jury has a right to judge both the law as well as the fact in controversy." John Jay, 1st Chief Justice U.S. Supreme Court, 1789.
"The law itself is on trial quite as much as the cause which is to be decided." Harlan F. Stone, Chief Justice U. S. Supreme Court, 1941.
"The pages of history shine on instances of the jury's exercise of its prerogative to disregard instructions of the judge...." U.S. v. Dougherty, 473 F.2d 1139 (1972).
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Published in Guns and Ammo Magazine, November,1998.
© Chuck Klein, 1998
HUMAN RIGHTS:
At first both the concept and practice were very simple. Right was right and wrong was wrong and the government's role, via the constitution, was to make sure our rights were protected and wrong-doers were dealt accordingly. Our founding fathers feared more than anything else, government intrusion into their lives. In the early days there were few laws, almost nonexistent law enforcement, no bureaucracies and the ratio of government employees to civilians were minimal.
Prior to the Revolutionary War human rights were determined by the whim of the King or his designee. After the formation of The United States of America two distinct classes of RIGHTS were soon recognized and granted to all citizens: UNALIENABLE and CONSTITUTIONAL.
UNALIENABLE RIGHTS are those rights that could not be traded, sold, bartered, negotiated or otherwise disposed of. Any and all Americans were automatically free to engage in any activity as long as it didn't adversely affect another human -- keep him from enjoying his UNALIENABLE RIGHTS. In other words Americans were entitled to live free and pursue whatever made them happy. Each person also had the UNALIENABLE RIGHT to use what means were available to him, including, but not limited to, military arms, to protect and insure his life and property against any criminal assault, be the criminal another human being, corporation or...government entity.
Because our forefathers felt so strongly about some of our UNALIENABLE RIGHTS they included the most sacred in a Bill of Rights and attached this register of liberties to The Constitution -- "the supreme law of the land." These CONSTITUTIONAL GUARANTEES are what has and does distinguish America and Americans from all others. Violation of these
RIGHTS is what causes the rage that seethes in almost any conscientious and constitutionalle educated citizen. Not unlike previous revolutionaries, this fury is the essence of militias and other groups that long for a return to a society where everyone abides by the same rules and regulations. These patriots are not anti-American or bent on destroying American, per se. They are livid with anger at the systemic disregard of our CONSTITUTIONAL GUARANTEES 
as well as contempt of our UNALIENABLE RIGHTS.
The Second Amendment, taken at face value, means that anyone may literally own and carry any type of "arms" anywhere sans licenses, permits or special taxes. Of course, reasonable citizens recognize that certain persons, such as mental incompetents or children, should be excepted. But, federal, state, local ordinances, and judicial rulings are NOT the legal and correct method of enacting these exceptions. If "we the people" do not want ordinary citizens to have a .303 Vickers Machine Gun mounted on their SUV - then changing the constitution is the only way to incorporate the exception. It is not within the rights of the Legislative, Executive or Judicial branches to make these exceptions. Nor is it legally within the powers of any bureaucracy to infringe upon any UNALIENABLE RIGHT or CONSTITUTIONAL GUARANTEE.
Despite what detractors of the 2nd Amendment believe, the CONSTITUTIONAL GUARANTEE, our UNALIENABLE RIGHT, to do anything we want with regard to weapons is set in stone. However, arrest, confiscation, conviction and prison is in store for anyone who violates laws that prohibit certain "arms" activity, regardless of the fact that these laws are unconstitutional. How did this happen? Laziness?
KLEIN'S LAW OF LAWS:
"We are NOT a nation of laws - we are a nation of constitutions. Laws, statutes, court decrees, presidential edicts are subservient to constitutions."
Conspiracy? Contempt? Superiority? All of the above? Just because something is set in stone doesn't mean that it can't be changed. But, only a replacement stone will work. Statutes, executive orders or judicial decrees will not, LEGALLY, change the stone's mandate. In plain and simple words: The ONLY way to change a constitutional amendment is to make a new amendment.
Changing the Constitution is a lengthy process that sometimes yields unintended consequences, a la, Prohibition Amendment [18th] and the Income Tax Amendment [16th]. This, coupled with a desire for control, is why judges, Senators, and Members of Congress tend to resist constitutional changes. Historically, it's been much more expedient for law makers and judges to deal with troublesome constitutional matters in their own bailiwick or by just ignoring matters they deem politically incorrect. It is easier to unilaterally declare the 2nd Amendment does not apply to: machine guns, sawed-off shotguns, "underage" citizens, and concealed weapons, etc., than it is risk a new constitutional amendment that might force an attitude adjustment on the so called politically correct.
Today, HUMAN RIGHTS have become either NEGOTIABLE or JUDICIAL RULINGS. A negotiated right is somewhat like a plea bargaining arrangement. Even if you're not guilty the plea bargain is, in many cases, not only an alternative to bankruptcy, but accepting the negotiated terms eliminates the risk of a more severe outcome. An example of a negotiated right is one where the government says, if you want to carry a concealed weapon for your own protection, you must surrender your 2nd Amendment RIGHTS in exchange for the privilege of a state issued permit. Of course, if you desire to exercise your constitutional rights to "keep and bear arms" the government, with its unlimited funds, will force you into a very expensive and long trial. The outcome of such a trial has been predetermined by the many previous and precedent setting [unconstitutional] laws and JUDICIAL RULINGS.
JUDICIAL RULINGS are rights as defined by a court. When a 2nd Amendment issue is raised the JUDICIAL RULINGS, themselves, have been in violation of the CONSTITUTION. Judges, when ruling in favor of restricting "arms", are violating their Article VI oath to "support this constitution...." When it comes to issuing rulings on "The right to keep and bear arms," a Judges fear of going against political correctness is far greater than complying with The Constitution's Article VI. The reason for this is simple: There is no de facto penalty -- IT IS NOT A PUNISHABLE CRIME -- for violating Article VI, whereas, going against public opinion risks ostracism. When it comes to firearms use and access, judges, with impunity, ignore sworn duties and violate unalienable rights and constitutional guarantees..
HUMAN WRONGS:
Today Government intrudes into almost every facet of daily living. Law enforcement, from local traffic control to national security, is Orwellian and bureaucracies beget bureaucracies. The number of government employees now makes up the largest voting block in history.
In western civilization, from the beginning of time, there have been only two kinds of HUMAN WRONGS: MALUM IN SE, from Latin, for wrong in and of itself and MALUM PROHIBITUM, also from Latin, meaning, wrong because society says it's wrong. We don't need laws to tell us that it is wrong to murder, steal or repudiate an oath to God.
Theft, murder and violating a sworn oath to G-d are MALUM IN SE, whether we have laws against those offenses or not.
All other wrongs, from failure to acquire a building permit to bribery, are wrong because we, society, via our law-makers, have labeled certain acts to be against public policy.
The United States is a codified republic inasmuch as nothing is against the law unless there is a law specifically saying so. Just like our HUMAN RIGHTS, the basis for all MALUM PROHIBITUM laws is found in the Constitution. The prohibited conduct and the conditions for declaring acts to be against-the-law are spelled out in a constitution, be it federal or state. All provisions, both RIGHTS and wrongs mentioned in a constitution, must be adhered to as a constitution is the supreme law and can only be changed by procedures outlined in its [the constitution's] own text.
When this country was established there were procedures made for writing other rules, orders and laws. These additional laws included STATUTES written by federal and state governments and ORDINANCES enacted by lesser government entities. All rules, orders and laws must CONFORM to -- not violate -- any portion of the U.S. Constitution. There was no provision then, and there is no provision now, to permit the President, the Senate, Congress or any judge to change -- VIOLATE -- any portion of the Constitution of The United States of America.
This nation of laws, laws based upon a constitution as the supreme law, has evolved through an era of legal predecence to a nation of judicial decree.
Today, beyond those wrongs listed in STATUTES and ORDINANCES, are edicts, penalties, and mandates judges, elected officials and bureaucrats have unilaterally enacted. Acts that heretofore were MALUM IN SE, such as attacking and killing men, women and children in Waco or Ruby Ridge, are not wrong if our government says so. Also, rights privileges and immunities, such as "the right to keep and bear arms," except under very narrow conditions, are now deemed a wrong.
There was no change to the Constitution, we the people never sanctioned a legitimate new set of rules. Some elected officials, sworn to uphold our rights and support the Constitution, have slowly eroded many of our HUMAN RIGHTS. Our system of ordinances and statutes, based on the constitution, has become a pattern of judicial rulings, skirted by executive orders and bureaucratic decree, of which the constitution has become merely a guideline.
SOLUTIONS:
* Enacting The 28th Amendment to the Constitution will not only secure our "right to keep and bear arms," but will place long over due restraints on an out of control judiciary.
* Establishing Judicial Accountability: A proposed law to make the judicial branch accountable
* Additional reading on the subject: Dirty Little Judicial Secret
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Published in Guns and Ammo Magazine: May,1999.
© Chuck Klein,1999
EXCUSES IN HISTORY:
Early in this century, when even the "politically correct" had a sense of right & wrong and fair play, it was believed to be in the best interest of this country to ban the sale and consumption of alcoholic beverages. Those in power, back then, were believers in doing what they wanted to do in the legal and proper way. First they discussed passing laws to ban booze. But, after a cursory study of the Constitution it was clear there was no provision in this great body of supreme laws to permit the "majority rule" or any government body to outlaw alcohol, sans a constitutional act. Thus, the 18th Amendment was born, passed and ratified all in due order. This formal and official constitutional decree forbid "the manufacture, sale, or transportation of intoxicating liquors...." Political correctness or even majority rule is not the way this country was set up to run. We are a republic, a nation of laws, whose supreme law is the Constitution.
Fourteen years later, with the onset of the Great Depression, the "political correctness" had shifted. With this shift came three revelations.
* It was then considered in the best interest of the country to encourage legitimate liquor producing businesses. This not only made for a taxable commodity, but in an era of economic downturn, a major fiscal impact came from employing men in transportation, bottle, label, and box manufacturing industires.
* Enacting amendments to the constitution are burdensome, unwieldy and time consuming. In addition, Federal politicians found it insulting and repugnant to submit to state legislators for ratification of their wise and guiding acts.
* The federal government felt it had to find some form of employment for the now out-of-work liquor agents. Up to that time it was well established that if one worked for the government, one could expect low pay, but a layoff-free job [today it's high pay, no lay-off, PLUS a virtual termination-free environment].
Just before the repeal of prohibition informal studies and polls were taken by the PC. The preordained results indicated that the greatest threat to America was the proliferation of machine guns and other dangerous ordnance. This was evidenced by sensational news stories about mass killing by the mobsters who controlled the illicite and illegal liquor industry. Never mind that these guys were out of business with the repeal of the 18th Amendment and thus the legalization of liquor making.
The government again faced the same dilemma it had in 1917; there were no provisions in the constitution that would allow for the banning or controlling of machine guns or any other weapons. In fact the Constitution's 2nd Amendment expressly forbade infringing the right to keep and bear arms. The correct and legal way, if "the people" so desired a change, was the repeal of the 2nd Amendment or the enactment of a rider to control or ban whatever guns they wanted. But, a new amendment takes time and then there's that humbling matter of having to beg the states to ratify it. Besides, the PC was convinced it needed to find jobs for those soon to be laid-off liquor agents. The quick fix, the feel good way, the start down the slippery slope way was to just pass a federal law. Hence the National Firearms act of 1934.
To carry this to its logical conclusion, suppose they pass a gun prohibition amendment. What would become of all those the "F" agents in BATF? Would they be laid-off? Fired? Not a chance. If history repeats, as we have learned, a new PC evil will be found, laws passed and, eureka, the "F" agents will have their new assignment.
Now let's see, what could be a new scourge, a cause cêlêbre? Maybe lone occupants of motor vehicles, or "dirty" books, magazines and movies. How would you like to have to explain to camouflaged, ankle booted and heavily armed BATF agents [hey, I didn't call them "jack-booted thugs"] why you are not car-pooling on your way to the grocery store? Or have to defend your home against "Playboy Mag" raids.
THINK IT CAN'T HAPPEN?
"They," the politically correct, our government, anti-[fill- in-the-blank] groups, news media, are setting us up just like "they" did to the tobacco makers. There is no provision in the Constitution to allow the federal or state governments to force exorbitant taxes or otherwise harass a legitimate business. What "they" did was, using government funding, establish pseudo health organizations such as the Center for Disease Control to declare and publish tainted findings that cigarettes are not only harmful to the health of Americans, but as such, the health burden to treat these unhealthy citizens cost the government money.
The fact that there is also no constitutional justification to allow, permit or require any state or federal government to treat its citizens [socialization of medicine] totally escapes the mentality of the politically correct - not to mention the judges who had had these cases before them.
Armed with false health reports "they," using tax payer money, instigated civil law suits upon civil law suits to force an out-of-court settlement. The tobacco companies, as large and rich as they are, soon realized they were no-match for the endless funding of the government. The result was exactly what the government [and the lucky {read, greedy} lawyers who handled the cases] wanted: money - lots and lots of money. The certainty that there is no constitutional basis for this rape of a legitimate industry is totally ignored by "they."
Already, the federally funded Center for Disease Control has come out with position papers saying that guns are a health risk. As this is being written, some cities, using the same tobacco- style logic of having the expense of medically treating gunshot victims with public money, have already filed suits against gun makers. Only this time, in addition to money, money, money, "they" seek an outright ban on guns. Because we have slid so far down the slippery slope "they" just might be able to get away with it.
Incompetent and cowardly lawyers AND JUDGES, afraid to go against the political correctness of the day have failed to overturn the National Firearms Act, The 1968 Gun Control Act - and most other unconstitutional laws since passed. The die has been cast, the precedent established, the ride down the slippery slope has begun. Since the ratification of the 21st Amendment [repealing prohibition] there have been only nine new amendments to the constitution. All of these new amendments apply to either voting rights or political functions. None deal with protecting former or future individual rights. Since 1933 all personal rights, privileges, guarantees or immunities spelled out in the Constitution have been dealt with exclusively by enacting laws irregardless of their constitutional legality. The attitude of the politically correct has been and still is; lets pass the law because it feels good and is good for getting votes. We have slid so far down the slope the tobacco makers knew, same as the gun manufactures know, there isn't a judge in the country that will declare the government's tactics against politically incorrect, albeit ligitimate, industries to be unconstitutional.
RULE OF LAW vs. THE SLIPPERY SLOPE:
Henry Hyde, in his eloquent address to the House of Representatives [19 Dec. 98], based his entire justification for impeaching the President of the United States on the rule of law. "The phrase 'rule of law' is no pious aspiration from a civics textbook," Mr. Hyde chastised his fellow legislators. "The rule of law is what stands between all of us and the arbitrary exercise of power by the state. The rule of law is the safeguard of our liberties," he concluded.
What rule of law could he be referring to other than the mother of all made-in-the-USA laws, the Constitution. It is in this sacred document where we find the rules of all laws. Here is the foundation guaranteeing freedoms and requiring compliance. The rule of law Mr. Hyde referred to in the impeachment matter is the obligation of the House of Representatives to bring articles of impeachment against a sitting president if there is probable cause to believe the accused is guilty of "treason, bribery, or other high crimes and misdemeanors."
The Democrats argued that perjury - lying under oath - was not impeachable inasmuch as it was not to the level of treason, bribery or other high crimes.... What they failed to acknowledge, and what the Republicans neglected to sight, is the last word in Article II, Section 4: MISDEMEANORS. A misdemeanor is "any crime or offense inferior to a felony," [Blackstone Law Dictionary]. It seems that our forefathers, in their infinite wisdom, have decreed that the President, while he is serving his country, must be free of all criminal guilt. He shall be the leading example, the epitome, a true and just leader of the people and not involved in any criminal activity whatsoever.
The democrats want to start down that slippery slope by saying the language of the constitution is not what is says it is or as George Orwell might put it, some felonies are more equal than other felonies.
Further, the Democrats have also taken the adamant stand that perjury, unless committed directly against the state, per se, and not just against one of us commoners, is not an impeachable crime. To accept this reasoning will open the door [starting down a slippery slope] to future presidents arguing that even murder, unless committed against the state, is not an impeachable offense.
There is one final rule of law; a law that supersedes even the Constitution. Mr. Clinton who has flouted and taunted the premiss that perjury is not of the same stature as treason, bribery, et. al., is forsaking the very foundation, the bedrock, of western civilization. On a mount, a very long time ago, ten commandments were passed directly from God to mortal man. Violation of any of these direct orders from God is most assuredly of the rank, if not higher than, treason, bribery and other high crimes and misdemeanors. Those who ignore the commandment, THOU SHALL NOT BEAR FALSE WITNESS, might consider some deep inner reflections before trivializing or excusing perjury.
To protect our president from situations that could yield criminal charges, we comp him with body guards, chauffeurs, legal counsel, housing, servants, etc., etc. For example, if the President had to drive his own car, he would be open to charges [real or trumped-up] of misdemeanor traffic offenses. Such a minor charge, under our Constitution, could start a process of impeachment. However, we, his employer, afford him insolation from the public to insure he is not wrongly charged by evil, vicious and/or sensation seekers. Of course, if the President, regardless of these publicly paid forms of protection, is so stupid, pompous, insolent or arrogant as to commit a crime, any crime from treason to misdemeanors, then our Congress must impeach.
No matter how popular or well intentioned the accused is, we are not a nation of majority rules where public opinion adjudicates. The atrocities of Adolf Hitler, were overwhelmingly supported by his constituency. The difference between Nazi Germany and the United States: we are a republic of laws whose constitutional foundation has survived for over 200 years. As we fail to adhere to the rules of law, we continue the slippery slide into fascism.
Mr. Hyde also said, "The rule of law is like a three-legged stool. One leg is an honest judge, the second leg is an ethical bar and the third is an enforceable oath. All three are indispensable to avoid political collapse."
We all know many ethical members of the bar who have tried in vein to have gun laws that violate state or federal constitutions tossed out. It's the "third leg" that causes the problems. Without the FEDERAL JUDICIAL ACCOUNTABILITY LAW the third leg is, in reality, powerless inasmuch as there is no way to force any judge to obey his oath to uphold the inalienable rights guaranteed by our constitution. With no workable enforcement of the judicial branch, i.e., legislators without the integrity to demand compliance, the stool has fallen every time "shall not be infringed" is mentioned.
WHOSE DEFINITION OF ETHICS??
This brings us to JUDGES and the judicial branch in general. Used to be the wearers of white robes were the most feared gangs. Now it's those who wear the black robes. These pompous fate adjusters are so powerful they don't even have to abide by their own rules. After all, what do they have to fear? Appointed for life [on the federal level] by like-thinkers they can ignore constitutional demands and controls with impunity.
Case in point: Recently a question was sent, via letter, to Thomas J. Moyer, Chief Justice of the Ohio Supreme Court. Four months later, a "Staff Counsel" responded, "Pursuant to the Code of Judicial Conduct, the Justices and employees of the Supreme Court are not permitted to give legal advise or to answer questions concerning legal issues." A copy of the Ohio Code of Judicial Conduct was enclosed. A careful study of this short, official set of Canons of Ethics found no statement saying "[judges] are not permitted to give legal advise or to answer questions concerning legal issues." In fact, Canon 2 contradicts: "(A)(1) A judge may speak, write, lecture, teach and participate in other activities concerning the law, the legal system and the administration of justice." The commentary to this section goes on to say: "...a judge is in a unique position to contribute to the improvement of the law, the legal system and the administration of justice... [and] is encouraged to do so...." In other words, the Canons recommend that judges "answer questions concerning legal issues."
In Ohio, like many other states, the state Supreme Court has jurisdiction over complaints filed against members of the bar, of which most attorneys and state court judges are members. The judges not only pass judgement on lawyers, but measure the judicial conduct of their fellow judges as well. They are in the position of acting as their own judge, jury and executioner when it comes to misconduct on the bench. This system is tantamount to the old proverb of the foxes guarding the hen house - and with the same predictable results.
Inasmuch as the aforementioned Ohio Canons lays out a code of judicial conduct it has the audacity to build into the code excuses for not disciplining fellow members. The Preamble to the Code of Ethics states: "It [the code] is not intended, however, that every transgression will result in disciplinary action." What they are saying: if one of the PC commits a crime or violates any of the Codes, we don't have to yank his license. While at the same time, if an attorney who is not PC, we have the power and right to disbar him for any transgression. Ohio should change its Code's name to Ethics by Arbitrariness and Capriciousness.
This is no surprise. Ohio is only emulating our federal system that, for example, used its power to ajudicate that the FBI agent did not commit murder - or any other crime - when he shot and killed Randy Weaver's wife. Legalities aside, where's the ethics in this?
Recently, an Ohio licensed attorney [Doris Houser Allen] was indicted for perjury, tampering with evidence and tampering with records. This was not just "code" infractions, but criminal felony violations. Ms. Allen's criminal acts caused the physical arrest and incareration of an innocent person. The Board of Commissioners on Grievances and Discipline recommended Ms. Allen be suspended from the practice of law for six months for professional misconduct. The Supreme Court of Ohio voted 5 - 2, sans comment, to dismiss the complaint. In Ohio, like most states and all federal jurisdictions, there is no appeal and no citizen panel to police lawyers.
Appointed for life, federal judges who commit misdeeds are subject to impeachment. The Bill Clinton impeachment process clearly showed what a long and drawn-out procedure it is. This is the primary reason there are such a low number of judges that are actually impeached, much less removed from office.
DUH:
It is a well-known truth the American Bar Association is anti-gun. The ABA does not deny or hide this fact. The over whelming majority of lawyers in this country are members of this trade association. Of the approximately 385K members most judges do or did belong at one time or another. Since the ABA is noted for its position against guns, per se, it stands to reason that any such member is presumed to be, at worst, anti-gun. At best, an ABA member [or in some cases, a former member] is tainted by association. If membership exposes readers of the association's publications, which are most certainly bias against firearms use or ownership, then a negative bent would not be unreasonable to assume.
Ethically, any judge who has a conflict of interest with any case before him, must excuse himself from the case - even if the conflict is not brought to his attention by either side. This happens all the time. In civil cases involving some publicly traded company in which the judge owns stock, he will bow out, usually of his own accord. In criminal matters where he is known to harbor prejudice against the defendant or the defendant's position he will yield to another judge. When was the last time you heard of a judge in a firearm related case excuse himself - even at the request of the defendant - because he belonged to a known anti-gun association?
SOLUTIONS:
Photo copy this article and send it to your U.S. Representative and Senators voicing your support for passage of a FEDERAL JUDICIAL ACCOUNTABILITY LAW. If such a law were proposed, it should read to the effect:
FEDERAL JUDICIAL ACCOUNTABILITY LAW:
SECTION I. In any criminal or civil jury trial the defense shall have the right to argue the law, as well as the facts, before the jury. no judge shall issue instructions or opinions to the jury after the start of the trial.
FRAMER'S INTENT: As covered in Klein's preceding columns in GUNS & AMMO (Feb. 1998, and Oct. 1998) it is most important for all Americans, especially gun owners, that we reinforce this established concept of Jury Nullification. Because most judges have, in violation of their sworn duties, ignored this right and power and because there are many unconstitutional laws. This section is needed to enlighten juries of their rights and powers. Without this well established right and power, we gun owners will continue to be subject to contitutionally ignorant and anti-gun biased judges.
SECTION 2. No judge shall issue any verdicts other than affirmed, denied, guilty or not guilty; nor shall a judge issue any orders, edicts, commands or decrees; contempt of court citations excepted.
FRAMER'S INTENT: Judges tend to propogate power, i.e., self- appointed power. Many "laws" are the result of court cases where a sitting judge ignored a petitioner's request for a yes or no decision and instead delivered his opinion - a bias that carries the weight of law. These unrequested edicts, commands, orders and decrees are in excess of his constitutional powers. Most of these "case laws," such as school busing, affirmative action or refusals to uphold the 2nd Amendment, are in violation of The Constitution.
SECTION 3. Whosoever violates sections i or 2 of this statute shall be fined not less than ten thousand dollars ($10,000).
FRAMER'S INTENT: If Representative Henry Hyde (see sidebar) really means what he says about the third leg of the stool, then he and his fellow republicans should not have a problem supporting this "enforceable oath." For any law to have meaning it must have a definite and suitable penalty. Ten thousand dollars, even to a judge, is not peanuts.
SECTION 4. Charges of violations of any section of this law shall be adjuciated by a judical review board comprised of twelve citizens, randomly selected from voter registrations. each judical reveiw board member shall serve not less than 12 months nor more than 24 months. compensation shall be at the same level as federal appealant court judges.
FRAMER'S INTENT: To judge the judges a review board, completely independent of any of the branches of government, is necessary for open and disinterested decisions. Since the constitution was written by lay men, average men and women are certainly competent to read, understand and apply its meanings.
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Published in Guns and Ammo Magazine, August 1999.
© Chuck Klein, 1999
GUN SHOWS ARE POLITICALLY CORRECT - THEY GENERATE MONEY:
Gun shows are a legitimate industry that generates a great deal of income from federal, state, local and excise taxes; hotel rooms; restaurant meals, air and ground transportation; entertainment such as golf, tennis and theater. Frank Galati, a gun show promoter out of St. Louis, hosts three shows per year with an average attendance of 4500. Of that number, he stated, 40% stay overnight. However, the numbers were as much as 15% higher a few years ago. He attributed the drop in attendance and exhibitors from the federal government's crack-down on FFL holders who did not operate from a store front. This forcing of legitimate gun dealers out of business because they ran their operation from their home or garage has had a negative impact on gun shows.
Reducing the number of FFL dealers is one program the Clinton administration is championing to further restrict [read, eliminate] all firearms. Dave Goodman, Bill Goodman Gun Shows, Mt. Washington, KY, said that the government wants to close what they call "the gun show loophole." He said, "They [the government] believe a disproportionate number of guns purchased at gun shows are used for criminal activity. This contradicts the Justice Department's own study that said only 2% of guns purchased at gun shows are actually used in crimes."
Some promoters are currently reeling from a double punch. In Illinois, gun show promoter, Bob Leckrone, Egyptian Gun Association [ECA], told Guns & Ammo, "Chicago's Mayor Daly is trying to impose a $1000.00 yearly fee in addition to requiring $1,000,000.00 in liability insurance that must be carried for all FFL dealers. This excessive "tax" is, of course, a ruse by the state to put legitimate federally licensed gun dealers out of business." Mr. Leckrone's association spends up to $12,000.00 in advertising for each show plus hall rental fees of over $7,000.00 per show. ECA does 20 shows a year. Excluding exhibitors and attendees spending for hotel, meals, etc., ECA boosts the economy by $380K per year - and they're only one of many gun show promoters! An educated guess at the economic impact gun shows, excluding volume of goods sold, has on America would be somewhere near $100 million every year. If you added in the value of the guns and related equipment sold the number would exceed a billion dollars! Gun shows are big business.
AN UNCONSTITUTIONAL ATTACK:
Regardless of the money generating power of these legitimate businesses the current administration is increasing its illegal vendetta against gun shows, promoters and exhibitors. Not wanting to engage in a battle over the Second Amendment, per se, the Government's backdoor assault is nonetheless a violation of other guaranteed rights. A careful look at the Clinton gun show attack will show how our 9th Amendment rights are being trespassed upon. To better understand our 2nd Amendment rights sometimes we need to look to other portions of our intertwined Constitution.
BEGINNING WITH THE PREAMBLE TO OUR DECLARATION OF INDEPENDENCE AND CONTINUING THROUGH EACH ARTICLE AND AMENDMENT OF THE CONSTITUTION, THE UNDERLYING UNIFORM THEME IS AND HOW EACH DOCUMENT IS STRENGTHENED IN PART AND HOW THIS FOUNDATION CONFIRMS OUR FOREFATHERS DESIGN OF INDIVIDUAL RIGHTS.
The 9th Amendment, is seldom quoted or referenced because at first glance it seems confusing and obscure. However, upon careful dissection it is clear it was written as a reminder that the government is not permitted to negate or even reduce in meaning any of the "people's" rights. The amendment, using words not in common usage today, says: 
The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
* ENUMERATION: List of items, such as those listed in the Constitution, i.e., right to keep and bear arms, right to peaceable assembly, free speech, etc.
* SHALL: Mandatory, must be done. Contrary to this explicit demand of the 9th Amendment, the courts have ignored their obligation.
* CONSTRUED: Interpret: infer, deduce, to construct. To understand or explain the sense or intention of - in a particular way - or with respect to a given set of circumstance. The very act of incorporating the 9th Amendment into the Bill of Rights is construed to guarantee that these listed rights were not the only rights reserved for the citizens.
* DENY: To refuse to accept the existence, truth, or validity thereof. Lawmakers and some courts, in violation of this MANDATORY term of the 9th Amendment, have consistently refused to accept the existence, truth and validity of our right to enforce [secure for ourselves] our UNALIENABLE RIGHTS to life, liberty and the pursuit of happiness. To acknowledge a right, but DENY a means to enforce or protect the right is not a right at all.
* DISPARAGE: To lower in rank or reputation, degrade. To depreciate by indirect means. If our power to defend our UNALIENABLE RIGHTS is degraded, depreciated or reduced, then those rights, in violation of this amendment, have been DISPARAGED. There is no greater degradation of a right than to restrict the enjoyment or enforcement of this right. Attempting to put gun shows out of business is unquestionably an "indirect means" of violating 2nd Amendment and also certain UNALIENABLE RIGHTS.
* RETAINED: To keep in possession, to hold secure or intact, keep. Rights, listed or unlisted in the Constitution, belong to us, the citizens of the United States, and are not subject to removal, political correctness, DENIAL, or DISPARAGEMENT.
"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...fundamental rights may not be submitted to vote; they depend on the outcome of no elections." [Justice Jackson for the U.S. Supreme Court in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)].
* PEOPLE: Human beings making up a group or assembly or linked by a common interest. The citizens of the United States of American.
* OTHERS: Being the one or ones distinct from that or those first mentioned or implied. Refers to rights, as in other rights - the certain rights first mentioned in the 9th Amendment. These OTHER rights are the UNALIENABLE RIGHTS such as, though not limited to, those self-evident Truths: "Life, Liberty and the Pursuit of Happiness. "The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfaction of life are to be found in material things. These legal pioneers sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone - the most comprehensive of rights and the right most valued by civilized man." [Justice Brandeis for the U.S. Supreme Court in Olmstead v. United States, 227 U.S. 438, 478].
Using these definitions from Webster's Ninth New Collegiate Dictionary, we can come up a simple explanation:
THE NUMBER OF RIGHTS LISTED IN THE CONSTITUTION SHALL NOT BE THE ONLY RIGHTS KEPT BY THE PEOPLE AND THAT THESE OTHER RIGHTS SHALL NOT BE DEGRADED, OR DEPRECIATED OR NEGATED BY REFUSAL TO ACCEPT THE TRUTH OR EXISTENCE THEREOF.
In other words, the rights listed in the Constitution are NOT our only rights, and what other rights we have cannot be taken away or even reduced in power or stature. Modern American Law, Volume 16, Constitutional Law, [Blackstone Institute, 1921] also defines this amendment in simple terms: " ...a declaration intended to preclude [rule out in advance] the view which might possibly be put forward that the specific enumeration of certain rights was exhaustive [complete, thorough] and therefore no others could be claimed" [notations added]. Here, the authors of this noted text point out that the framers of the Constitution were so fearful of future usurpation of government power, they wrote this hands-off-all-of-our-rights into the Bill of Rights.
Of the few court cases that have examined the 9th amendment, the United States v. Cook [(1970, WD Pa) 311 F Supp 618] did define the objective of this least cited amendment: "The purpose of the Ninth Amendment is to guarantee to individuals those rights inherent to citizenship in democracy which are not specifically enumerated in the Bill of Rights." In 1996 the San Diego County Gun Rights Committee sued Janet RENO, Attorney General of the United States [98 F3d 1121 (9th Cir. 1996)]. They challenged the constitutionality of the Violent Crime Control and Law Enforcement Act provisions prohibiting manufacture, transfer or possession of new semi-automatic assault weapons.
The case was dismissed in District court and this decision was affirmed by the Court of Appeals. The reasons: the plaintiffs did not have standing and the action was not ripe for judicial review. In addition the court went on to say: "Ninth amendment does not encompass unenumerated, fundamental, individual right to bear firearms." However, the court did not address how other rights are DISPARAGED when firearms are restricted. The U.S. Supreme Court has never ruled on the 9th Amendment in relation to firearms.
WHOSE DEFINITION?
We didn't create a government to define or tell us what happiness, liberty or life is. That's what we had, i.e., the King of England, with his edicts, orders and laws, was telling our forebears what behavior was equated to being a proper subject. When we had had enough of being told what made us happy, we created a government to protect our right to determine for ourselves, individually, what made us happy, secure and what life style we wanted. And we made sure we secured the right to enforce these rights with a "right to keep and bear arms." Two hundred plus years of evolution has brought us back to where we started. Regardless of many well intentioned legislators, judges and bureaucrats, we have returned to a government that is forcing its definition of Life, Liberty and the Pursuit of Happiness on us:
* LIFE, according to the government, was poignantly defined for us at Waco Texas. If your religious, political and gun rights beliefs are counter to the government's you will be killed.
* LIBERTY: You are free to call the police any time you feel threatened by anyone other than an officer of the government. Never mind the fact that the courts have established the precedent that if the government fails to protect you, you have no recourse [Riss v. City of New York 22 N.Y. 2d 579, 293 N.Y.S. 2d 897, 240 N.E. 2d 860 (1968); Annot., 46 A.L.R. 3d 1084 (1972) and Annot., 41 A.L.R. 3d 700 (1972)].
* HAPPINESS: You are happy if you are not attending, exhibiting or promoting gun shows.
THE GOVERNMENT'S DEFINITION OF LIFE, LIBERTY AND THE PURSUIT OF HAPPINESS DOES NOT INCLUDE KEEPING AND BEARING ARMS FOR SELF-PROTECTION. WHAT GREATER RIGHT IS THERE THAN THE RIGHT TO PRESERVATION OF ONESELF AND FAMILY - AND HOW IS IT POSSIBLE TO EXERCISE THIS MOST BASIC OF ALL RIGHTS WITHOUT THE PROPER AND LEGAL TOOLS OF THE TRADE?
It is obvious that the framers of our body of laws intended for the government to keep its hands off our enumerated [listed] rights as well as those not listed [unalienable rights]. Not only does our sacred Constitution put our rights into print, but it created the rule of law forbidding the federal government from denying or disparaging [taking away or lowering in value] any of our listed or unlisted rights. The ONLY way our rights can be removed or devalued is by enactment of a new constitutional amendment that specifically addresses the issue.
One of every child's earliest lessons in rights is often learned in the school yard: "your right to swing your fist ends where my nose begins." When this logic is applied to adults there doesn't seem to be any difference between a balled fist and a concealed weapon. Being a carrier of a fist or a gun, in and of itself, is not a threat to anyone' right to be left alone.
SUMMARY:
Recently, our central based government has exceeded its power by declaring GUN SHOWS to be not in the best interest of America. This is a pure example of DISPARAGEMENT. The government, by saying gun shows are not in the best interest of the people, are lessening the value of our right to pursue the happiness of attending, exhibiting or promoting the show. Furthermore, any restriction on gun shows - or any type of lawful meeting - violates our right to peacefully assemble under the First Amendment. Attendees and exhibitors all have the given right to lawfully assemble and engage in the legal business of buying and selling firearms at any location so desired. This right cannot be DISPARAGED [lessened] just because the meeting involves activity the government, for whatever reasons, dislikes. With this attack on gun shows the government is saying, by its definition of the Pursuit of Happiness, you are not pursuing happiness if you take part in gun shows.
DISPARAGEMENT began in 1934 with the National Firearms Act, a clear degrading and depreciating of our right to pursue the happiness of keeping and bearing arms for self and family protection. This violation of the 9th Amendment is now being CONSTRUED to mean that the location of where we buy our legal [at least as of this writing] guns are no longer legal.
SOLUTIONS:
* Promoters might consider making "gun shows" no longer open to the public. Check with your attorney for legal pitfalls in setting up gun shows as gun collectors clubs where the admission ticket is a membership to the club. Many years ago Texas and other states that forbid open-to-the-public bars established this "club" practice. Each bar issued, for a fee, a membership card that permitted the member to enter the "club" and purchase drinks.
Establishing a gun show as a club where a membership card [perhaps just NRA identification will suffice] is required to enter and purchase guns. An advertising campaign advising that "dues" include the price of admission should lessen the impact to those who would be intimidated by yearly membership charge. The membership might include an initiation fee but entry to future show in the same year would be free.
* Another method might be to make use of the old "you catch more bees with honey than vinegar" theory. Here, the show promoters might offer a platform/free table to politicians that are in favor or opposed to guns. Local elected officials might feel less inclined to enact repressive laws when they are offered a free soap box. Exhibitors might also invite politicians to help "man their booth" in order to shake hands and kiss babies.
* Solicit help from the local Chamber of Commerce [make sure your dues are paid, first] to show how much money is brought into the area by gun dealers/buyers.
* Write guest editorials for the local newspapers telling how much money is brought in with gun show operations. It also wouldn't hurt to tout the usefulness of guns in society such as, hunting, target shooting, income generation and lives saved because the good guy had a gun to defend him/herself.
* Copy this article and send it to your elected representatives with your own comments.
* Secure the services of a competent gun-rights attorney and using the 9th Amendment to show DISPARAGEMENT of fundamental and UNALIENABLE RIGHTS challenge the constitutionality of the Clinton administration's attacks on the gun shows and other inherent rights.
* It is most disturbing when a court - especially a Federal Court - acts to DENY the existence of or DISPARAGES any UNALIENABLE RIGHTS simply because a firearm is needed to enforce these fundamental rights. We must learn to stop asking judges to define our rights. Their interest only lies in protecting the status quo as their employer is the same employer who pays the salary of the prosecutor and appeals courts' judges. One of our best hopes is the incorporation of the JURY NULLIFICATION tactic in firearm related matters [see GUNS & AMMO February & October 1998 issues].
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Published in Guns & Ammo: September 2000
© Chuck Klein 2000
PREFACE
Moving back to the Buckeye State in 1994, and to the remembrance that Ohio has no CCW licensing provisions, was most sobering. It was clear to me that not only was Ohio Revised Code (ORC) 2923.12 (the concealed weapons statute) in violation of the Ohio Constitution, but it was also an infringement on the 2nd and the 9th Amendments to the U.S. Constitution (see G&A 8/99, 12/99, 5/00). The subject statute (2923.12 - a felony) is known as the Affirmative Defense (AD) law, i.e., if one has a reason that would justify a prudent person to go armed, one may be exempted from a violation of the law. Only problem is, one has to be arrested and take his chances in a court of law - after the fact - to learn if he was within the AD definition.
By 1998, I felt I knew enough about the law and the rule of law to speak to several local organizations such as Kiwanis, Fairfield Sportsman's Association, Libertarian party, et. al. At each meeting I ended with a request that if anyone with a clean criminal record is arrested for a violation of ORC 2923.12 to contact me for a possible unique defense and attack on the law. Not being a lawyer, I can disseminate to a defendant certain information and tactics that an attorney cannot (see G&A 2/98, 10/98).
CASE BACKGROUND:
Pat Feely, a 29 year old, law-abiding, member of the NRA and the Miami Rifle & Pistol Club, felt he needed a firearm to protect himself. Pat, delivered and picked-up food products, both retail and wholesale, for a local pizza/commissary operation. During the course of a typical day, he would deliver prepared food products to canteen trucks, pick up raw ingredients from suppliers and deliver pizzas retail. All transactions were on a cash basis and Pat would handle up to $2000.00 per day. All of the wholesale exchanges were in remote locations, on a set schedule and some were during non-daylight hours. Pat, also, and regardless of his employment dangers, had made up his mind a long time ago that he wasn't going to be a victim.
Mr. Feely, in his concern about whether carrying a loaded firearm was legal, consulted numerous sources, including the book, KLEIN'S CCW HANDBOOK, The Requisite for Those who Carry Concealed Weapons (accepted during trial as Defendant's exhibit 1). Pat came to his own conclusion that he might have an "Affirmative Defense" under 2923.12 to CCW, but he was confident he had the Ohio Constitutional right to carry a firearm in defense of his life and property as well as the right to self-defense, found in the 9th Amendment to the U.S. Constitution (see G&A 8/99, 12/99, 5/00).
In 1999, while on a early morning, wholesale delivery for his employer, Pat was stopped by a police officer for displaying expired license plates. The vehicle was owned by his employer who was a few days late in attaching the current sticker. Pat was wearing a T-shirt with the words, "God Created Man, Mr. Colt made them equal" and an issue of GUNS & AMMO magazine was on the seat next to him. The officer, being observant as all good officers should be, inquired if Pat was CCW. Mr. Feely, an honest person, admitted he was carrying a Walther PPK/S in a holster under his shirt. The officer asked Pat to step out of the delivery van where the weapon was seized and Pat was placed under arrest.
Within a few days, Pat called with the requisite worry and fear of his future. I told him if he would agree not to accept the inevitable plea bargain and wanted to fight the charge, I would spare no effort to help him. He thought about it for a few days and called back saying he wanted to fight this unfair and unconstitutional law - the makings of a true hero. 
This was not a light and easy decision. Pat knew, because of a clean criminal history and that he wasn't committing any other crime at the time of arrest, he would be offered a sweet plea bargain. He also knew, if he insisted on a jury trial, and lost, he would most certainly be sent to jail, suffer heavy fines, lose his citizenship and never be allowed to own guns again.
Mr. Feely, a rugged man, had no fear of prison, figured he could pay any fine, over time, but the loss of his American citizenship, and with it a permanent restriction on gun ownership, was the deciding factor. It takes a very strong principled and ardent willed person to face the loss of one's most precious commodities. Rock solid and standing alone to face his oppressors, Patrick Feely was not unlike another hero named Patrick: Patrick Henry, as he spoke to the Virginia Convention in 1775; "Is life so dear or peace so sweet as to be purchased at the price of chains and slavery?"
The hunt for an attorney who not only could understand our tactical plans, but would allow for them and assist us, was most difficult. The unique tactics included, "Jury Nullification," the 9th Amendment to the U.S. Constitution, Article 1, #1 and #4 of the Ohio Constitution (see sidebars for detailed coverage of these rights), introduction of certain copies of GUNS & AMMO magazines as evidence and one extreme stratagem that will have to remain undisclosed lest we tip our hand for a future case.
Interviews with a number of other attorneys finally led us to Tim Smith, a most astute, results oriented, non-egotistical lawyer. Mr. Smith's Don Quixote demeanor was attracted to the challenges we presented.
As predicted, the prosecutor, knowing he had a weak AD case, offered Pat, in exchange for a guilty plea, Misdemeanor 2, $100.00 fine, no jail time and no restrictions on future gun ownership. A very enticing offer, except if you're hero material as well as being innocent.
NO SUBSTITUTE FOR PREPARATION:
Background information gathered about the trial judge included a statement that he believed everyone should be allowed to keep a firearm in a motor vehicle. He was also very much opposed to the use of "Jury Nullification". We prepared counters to these concepts. First, it is far more a danger to society for one to leave a firearm in a vehicle than for it to be on the person. Second, we prepared a unique tactic to deal with jury nullification (part of our plan) if the Judge resisted.
Attorney Smith, who had had many cases before the Honorable Thomas Crush, believed a bench trial could be more advantageous if we could get our constitutional issues in the record. We didn't feel the Judge would rule in our favor on the constitutional matters if presented as a motion. If the judge ruled against the motions and Pat was found NG by the judge, for reasons of the AD, then our arguments for the constitutionality of ORC 2923.12 would be moot. If found guilty,we would have the expense, time and uncertainty of an appeal.
There have been a number of cases where a defendant had raised Article 1, #4 as a defense to CCW and all had lost when the courts ruled one does not have an unrestricted right to carry a concealed weapon. We were unable to find any reference to Article 1, #1 in relation to self-defense with a firearm. This was new ground. Additionally, we were unable to find any court rulings or evidence where the police will arrest anyone found, in public, with a loaded firearm (hunters excepted).
There was also very little court tests on using the 9th Amendment to the U.S. Constitution in relation to an inherent right to bear arms for self protection. We were convinced that the meaning and intent of the framers of the Ohio
Constitution was clear: One has the inalienable - can not be taken away - right to defend one's life and property and may do so with a firearm.
In the event the prosecution relied on the argument that one can carry a gun in the open - not concealed - in order to enjoy his 9th Amendment and Article 1, #'s 1 & 4 rights, we prepared an answer. In the best interest of the public it is far more dangerous to carry a loaded weapon openly than concealed for the following reasons:
a) Firearms carried in the open can cause panic when other citizens see a gun being carried openly on the street or in a public place such as a restaurant or retail store.
b) A firearm carried in the open is subject to theft by any common snatch and grab thief - especially in a crowd where innocent persons could be injured in the scuffle.
c) A firearm carried in the open could be deemed an attractive nuisance inasmuch as it is a tempting target for thieves or others bent on mischief.
d) The tactical advantage of having a defensive firearm is lost if the criminal element is aware of the presence of an armed person.
TRIAL DAY, 22 May 2000:
On the day of our trial, we arrived in force, the defendant, a former employee who CCW while employed by the commissary and the employer, who had been robbed before and therefore condoned the carrying of concealed weapons by his employees. I was also a scheduled witness inasmuch as Mr. Smith would attempt to qualify me as an expert, thus allowing me to testify to the effect of the current law.
We were still set on a jury trial while the Judge and prosecutor wanted the matter settled at the bench. Mr. Smith's skillful maneuvering, in chambers, and with our consent, arrived at a compromise. The trial would go before the bench: we would be allowed to present evidence and testimony as to the constitutionality of the law as well as the affirmative defense. The quid pro quo was the Judge would render a guilty or not guilty verdict without giving his reasons or opinions. This way, if Pat wasfound guilty, we could appeal on constitutional grounds claiming the decision was against the weight of the evidence. If Pat was found not guilty, we could tout to our legislators and the media that "as a result of a criminal trial where constitutional issued were raised" the defendant was found not-guilty.
It wasn't perfect, but we were almost assured of a not-guilty verdict and we wouldn't have the risk of a jury trial. Sometimes things don't work out exactly as planned.
Prior to the trial, we had scripted the questions and possible answers for each witness. We wanted to be sure we got into the record the information and issues we felt were important to our cause. The arresting officer, during cross, admitted he
a) Was sworn to uphold the Ohio and Federal Constitutions;
b) Had no clue as to what Ohio Article 1, Numbers 1 or 4 said;
c) Did not ask the defendant if he was CCW in accordance with the subject article;
d) Would have arrested the defendant if the gun had been in the open - not concealed - for inducing panic, disorderly conduct or pointing firearms or all of the above.
e) He would arrest anyone found CCW regardless of their excuse or defense. His understanding of the law was that the Affirmative Defense is an issue only the courts can decide.
Mr. Feely took the stand next. Very calmly he told of carrying large sums of money and how he believed in his constitutional rights to bear arms to protect himself and his property as accorded by the Ohio and the U.S. Constitutions.
After completion of Mr. Feely's testimony, but before any additional witnesses were called, Judge Crush stopped the trial and asked to see counsel in his chambers. Off the record, the Judge indicated he had heard enough and was not only prepared to render his decision, but was, with our permission, going to issue his reasons for his ruling! The Judge would find Pat Feely not-guilty because the law was unfair and should be changed inasmuch as there was no way a person could determine, without risking a conviction, what conduct is in violation of ORC 2923.12.He gave us half an hour to accept his proposal. We all readily agree as this was the best of all worlds. Mr. Feely would be found innocent and we would not only have a Common Pleas Court ruling saying ORC 2923.12 is "unfair and should be changed" but because the finding was a result of evidence in a trial and not in a motion, the prosecutor could not appeal the decision.
THE FALLOUT:
Immediately after conclusion of the trial, the defense team went to work contacting the news media and grass pro-gun organizations. By the next day it was all over the USA. Local radio, TV and newspapers all conducted interviews and ran articles on the case. So far, at least six significant revelations have come of this attention to ORC 2923.12:
1) The Hamilton County Prosecutor was quoted by a local news team as saying (in response to questions of applying the Ohio CCW law), "Maybe this is something the legislature needs to look at."
2) The President of the Cincinnati FOP (Lodge #69) said in a televised interview, "There has never been a police officer killed by a person licensed to carry a gun." This public statement is significant because the state FOP is against civilians CCW.
3) The NRA has indicated they will assist if any additional funds are needed.
4) The Second Amendment Foundation has promised to help with the funding and filing of injunctions, restraining orders and declaratory judgements.
5) There are a lot of generous, concerned citizens who rallied for this case. We received donations from all over the USA (thanks to all who helped, CK).
6) Everyday there are many UNTRAINED persons carrying loaded firearms in Ohio. Men and women, from waitresses to musicians to truck drivers, who have no tactical or practical training in the use and consequences of lethal force. A CCW permit system would correct this situation by mandating training for those who wish to CCW.
FUTURE TACTICS:
We plan to send excerpted copies of the transcript and the decision along with an annotated depiction of Article I, Numbers I and 4, and the 9th Amendment to the U.S. Constitution to every newspaper in the State, every state elected official, the State FOP, Ohio Highway Patrol and the Ohio Association of Chiefs of Police.
We will promote the policy, supported by threats of civil suits, that if a Law Enforcement Officer attempts to enforce ORC 2923.12 he would be violating that person's Ohio Article 1, #s 1 & 4 rights and his 9th Amendment U.S. Constitutional rights UNLESS the officer is able to prove that the person being arrested was not CCW because he was exercising his Art 1, #s 1 & 4 and 9th Amendment rights. In other words, it seems clear that the state has the burden of proof to show that one who is CCW is NOT exercising his Ohio Constitutional rights under Art 1, #s 1&4.
With the recently offered help of the Second Amendment Foundation, we intend to file an injunction precluding the State from enforcing ORC 2923.12. This should have the effect of forcing the legislature to enact a permit system for those who wish to CCW.
SUMMARY:
If you conduct extensive research, anticipate moves and counter moves, and most of all have what it takes to be a hero, as Mr. Feely did, you can win - the rule of law on our side. This significant case, connecting gun rights to inalienable rights, might be the start of the pendulum swinging back from political correctness to constitutional correctness. Copy it - send it to those who need enlightening.
UPDATES: Case notes and updated information will posted on the web site: http://chuckklein.com
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Published in Guns & Ammo Magazine: February 2001
© Chuck Klein 2001
INTENTIONS:
"...SHALL NOT BE INFRINGED." Webster's 9th New Collegiate Dictionary defines SHALL as: "ought to, must; regulations or directives to express what is mandatory." INFRINGED, by Webster's means: "to encroach in a way that violates law or the rights of another."
Seems simple enough. Anyone with at least a 5th grade education should be able to understand that the Second Amendment to the U.S. Constitution means it is mandatory that our right to KEEP AND BEAR ARMS not be encroached. In other words, it is a violation of law to infringe on anyone's gun rights. If someone, including the government, takes my firearms away or restricts my enjoyment of them, it is they who are violating the law, not I.
Regardless of the clear and unambiguous definitions of the 2nd, debate continues to rage, and has for decades, on what the amendment means. The crux of the problem is in how we view the law, per se. Some us are strict construction, i.e., if that's what the law says, then that's what it means. Others look at the law as something that is open to interpretation.
It is impossible to imagine James Madison or any of the other framers of our most sacred document, saying, "Look here fellahs, we'll write the mandate that everyone can own and carry guns, but we really don't mean it. After we've gone home and the new government is sworn in and they want to pass a few laws of encroachment, surely they'll understand we didn't mean what we wrote." Or Alexander Hamilton, expressing his views, "I've heard that Major Patrick Ferguson's new breach loading rifle is much faster to load and is an excellent assault weapon. Of course, if our first president deems it a weapon that could be used in an uprising, I wouldn't have a problem with his determining this new technology does not fall under the protection of the Bill of Rights." Yeah, sure and Bill Clinton has never lied.
From our knowledge of the era and the readings of the Federalist Papers and other accounts of the time, we are confident those fictitious conversations never happened. It would have been inconceivable for the designers of our Republic to say or write anything they didn't mean. When they wrote in Article I, Section I, "All legislative powers herein granted shall be vested in a Congress...." they didn't mean for the President to write his own laws or the Judicial Branch to make laws with their rulings, but that's what has evolved. How did we get this way? Where or what was the turning point? I don't have the answer, but the truth is, that's the way the system works.
Our Constitution, is neither to be taken strictly nor to be left to the whim of the PC. The "rule of law" is more of a rigid guideline where common sense is assumed. Sort of, well duh, we can't have three-year-olds packing a gun to school or allow drunks to run around locked and cocked or condone weapons of mass destruction in the hands of our next door neighbor. Sure it's an infringement to restrict kids, drunks and A-bombs, but we don't live in a perfect society and our laws aren't perfect either. Yet, if we take the right to keep and bear arms literally, we would have to include the drunk with his finger on the launch button of an ICBM or the child with a H&K MP5.
If you wince at these worst case scenarios, you have to admit the law has some gray areas. The problem is defining the limits of gray - and this is where we citizens differ. Some of us, with the best of intentions, believe no one should have guns including the police. On the other end there are those who would rather live next to a drunken lunatic with a Scud missile than a government military base with a hundred SAMs.
SOLUTIONS:
First we could re-write the 2nd Amendment to restrict the undesirables and incompetents. The advantage of condensing and codifying the many laws, statutes, presidential degrees would at least reduce the confusion and unfairness of many of the current, in force, restrictions (infringements). As easy as it sounds, it would probably be an impossible instrument to draft. 
Given the wide views of this subject, from ban all guns to permit everything up to an including the A-bomb, the bill might end up in committee forever.
The second, and most pragmatic method of dealing with Gray areas, involves a different mind set for us, the pro-gunners. We must learn to understand and use to our advantage the tools of our detractors. In the matters of law, the ruling principle in this country is, and has been, the operation of the de facto precept "THE BEST INTEREST DOCTRINE." This principle is not in the Constitution or written in any book of statutes, but it most assuredly is in effect.
A study of almost all firearm related court decisions, from the inferior to the superior to the Supreme Court, indicates that the wording/interpretation of laws are not the only issue at bar. Court decisions almost always take into account matters other than the strict constructionist question of, "is the subject law constitutional?". Many far reaching rulings, such as school busing, affirmative action, prayer in school, etc., are based on evidence other than constitutionality. Where this non-adherence to the exact wording and meaning of the law began is unclear or whether it is constitutional, is not the point. The "best interest" doctrine is a way of life and those who know how to manipulate and apply it to their advantage are the winners. When it comes to firearm cases there are usually four distinct "best interest" categories: SOCIETY, THE DEFENDANT/COMPLAINANT, THE COURT, SPECIAL INTEREST GROUPS.
1) What is in the best interest of SOCIETY. Unless the Defendant/Complainant can show how society will benefit by a ruling on his behalf or if the other side can show a favorable ruling will result in damage or a danger to society, the Defendant/Complainant will not prevail. Because it has been successful in many states, we'll use as a common example: the matter of citizens carrying concealed handguns. The claimant must demonstrate that his possession of a hidden weapon is either, or both, a benefit to society or not a detriment to the public. (The concealed carry example can, with selective changes, be used to address arguments over assault rifles, submachine guns, Saturday-nite-specials, etc.) It is far more prudent for those who wish to exercise their rights to self-protection to carry concealed than to carry open. Carrying a loaded firearm in the open is most assuredly a greater and imminent danger to the carrier as well as society at large, to wit:
a) An openly carried firearm could be deemed an attractive nuisance whereas the temptation to a snatch-and-grab thief would be very powerful. Also, carrying a firearm in the open and in-hand could bring a charge of inducing panic. Some people might be alarmed at the sight of a civilian walking around with a gun in plain view. States that allow concealed carry make as part of the rules the permit can be revoked if the carrier is caught carrying UNconcealed.
b) Should a fight ensue for the control of the exposed weapon - hand carried or in a holster - the carrier or a member of the public at large could be injured.
c) Police officers carry their off-duty firearm concealed so as not to alarm the public.
d) Society would be safer every time a crime is thwarted by the action of a gun carrying, law abiding citizen interacting during a criminal encounter.
e) It is an incentive for citizens to refrain from criminal activity so as not to become one of the statutory disabled and thus forfeit their rights to own and/or carry firearms.
f) Criminals, not knowing who has a gun concealed on her or her person, will be deterred in committing confrontational crimes such as rape, robbery, car-jacking, assault.
g) Myths, a.k.a. distortions of the truth or just plain lies will always be part of the equation and must be addressed. In relation to concealed carry there are two such myths that surface every time: The Old West and Everybody Packs.
The first espouses that the streets will run red with blood as shoot-outs will occur over traffic accidents, parking spaces, sporting events, etc. The truth is it just doesn't happen and hasn't happened in any state that switched to a CCW permit system. It didn't happen in Kentucky when they set up their system as recent as the mid 90s nor did it happen in Indiana when they established their program in the mid 70s. The second myth is that "everyone" will be carrying a gun - 50K to a professional sports event or parade. The actual number of citizens who seek a permit in the states that allow gun permits run to around 6-8% of the population. Of these not all will be in public at the same time and not all will carry all the time. Though 6-8% seems small, the significance is that another 20% +/- law abiding citizens CAN seek a permit if they deem it necessary. The 6-8% is a meaningful number when approximately half the population is under 21 years of age or are exempted from owning or carrying firearms due to statutory disabilities.
2) What is in the best interest of the DEFENDANT/COMPLAINANT. We are living in very dangerous times with ever increasing drug dealing shootouts, gang warfare battles, disgruntled murderous employees, psychotic killers, stalkers and robbers with no feelings for human life, and politically motivated fanatics venting their rage with lethal force on a daily basis. Adding to this escalating violence is the multiplicity of super-predators or just plain bad guys that are now carrying guns. The proliferation of firearms in our social makeup has made being proficient at hand-to-hand defensive techniques academic.
a) DEFENDANT/COMPLAINANT, not believing himself capable of surviving a knife, gun or life-threatening physical attack by someone of significantly larger size and abilities, needs to carry a concealed handgun for his personal safety and defense. Senior citizens, for the most part, are at a great disadvantage if denied an "equalizer" when attacked by someone 10 to 40 years their junior.
b) If the DEFENDANT/COMPLAINANT were to carry his weapon in the open, either in his hand or in a holster, the element of surprise is lost. Another person, bent on criminal activity, could kill or injure the open gun carrier first before continuing his illegal robbery, mayhem, rape, etc.
c) Persons, such as private investigators, whose employment requires inconspicuousness, would be at a great disadvantage if only allowed to carry an exposed weapon. Private investigations are sometimes far more dangerous than the same work preformed by public sector detectives, i.e., police have help (back-up) available via radios plus the authority of law and the power of arrest.
3) What is in the best interest of the COURT. The court hearing the case is not going to "step on any toes," such as ruling in contravention to another court's findings, without good cause. To overcome this hurtle, reasoning must be presented to the COURT to allow for a finding that utilizes different criteria than what another court had relied on. Historical references might be used to show how the prohibition against concealed arms is a modern day approach and have no historical support.
Arms, since the beginning of time, have always been carried in what ever manner the carrier deemed practical and convenient. When the U.S Constitution was drawn, c.1787, whether one carried his firearm openly or covered was obviously not an issue with the framers. If a fur trader of the 18th Century, flintlock pistol tucked in his belt, placed a coat over it, concealing his muzzle-loader, there is no record of anyone complaining.
For the next 100 years, when the westward migrating pioneers and cowboys covered their "six-shooters" with a winter jacket or slicker, no one was alarmed. Riverboat gamblers and other gentlemen of the turn of the century, for fear of offending the ladies, always carried their Derringers under a suit coat. For the most part, if the framers of the state Constitutions drawn during this period were concerned about those exercising their rights to self defense by concealing their arms, they failed to make any reference or note to that affect.
The Spanish America War, followed by the First World War, had not jaded the American people inasmuch as they still basically trusted each other and most criminals were of the petty class. Prohibition changed the persona of the country. The vast majority of the people, imbibers or not, were outraged that their government would make illegal a product of Biblical age and something they believed harmed no one but the drinker. Not only did the citizens ignore the law in huge numbers, but the law enforcers in many jurisdictions winked at the violators. This escalation of corruption also impacted the criminal. Now it was big business and when large sums of illicit money is involved honor, ethics and the compassion for a fellow citizen went out the window. Police, instead of having to deal with the common thief or burglar, were now involved in mass killings by whiskey runners and dealers. Some of these gang/turf wars were carried out by men with concealed short barrelled rifles, shotguns and submachine guns. The response by the various legislatures was to enact a variety of laws.
Many states passed statutes prohibiting the carrying of any concealed weapon including knives, daggers, black-jacks, brass knuckles and, of course, firearms. By the end of Prohibition, the Country was in the throws of the Great Depression. The economic hard times prevented most from buying and owning any form of firearms. Besides, with so much poverty, there wasn't much to steal. World War II brought about the end of the hard economic times and at the same time helped to restore the American spirit of fair play and honesty as everyone pulled to together for the war effort. There was little need for armed citizens with so many uniformed military personnel around and a general feeling of "we're all in this together so I don't need to a concealed weapon for protection". Peace and prosperity after the war kept crime rates low and again negated the need for personal weapons of the concealed type.
Then, with the coming-of-age of the baby-boomers, came the beginning of the era of social consciousness - the civil rights movement and the open resistance to the Vietnam War. This fear of riots and civil insurrection, coupled with the rapid proliferation of mind altering, recreational drugs, made the older and established generation apprehensive and a wave of states began passing concealed carry permit laws.
Therefore, it would be in the best interest of the COURT, to base its decision on the historical truth that concealed weapons were the norm at the time the Constitution was drafted and remained so for over 200+ years thereafter. By the writers silence on whether "bear arms" meant open or concealed it is conclusive that they intended it to mean at the discretion of the people.
Courts are made up of people and they, just like us, fear condemnation by their peers for going against the status quo. Assist them with all your briefs (or insist your attorney does) by providing definitions of the words used either in your text or in the law. Find the reason, justification, excuse they need to make a favorable ruling.
4) What is in the best interest of the SPECIAL INTEREST. The police certainly have a legitimate interest in seeing that unqualified persons do not have access to firearms - especially when carried concealed. Surely, the Legislature can legislate means to protect the citizens of its state including special groups such as the police. However, when the method of protection of some, leave others unprotected, a dilemma is presented.
a) Law abiding citizens, with or without a concealed arm, by the very definition of "law abiding" do not present any threat to police officers during routine interactments. Criminals, by their very nature, are not any more intimidated by concealed carry laws than they are by any other law - that's why they are criminals. A significant concern of the police community is the amount of training, or rather the lack there of, for citizens who carry weapons. Police, who must undergo long and rigorous training procedures fear that citizens who do not have this level of instruction and practice will be a danger to society and to the police themselves.
This concern is, however, unfounded by any study. The states of the United States vary from no training provisions for those who carry concealed arms to two- eight hour classes conducted by a State Police officer. In all of the states with carry permit systems in operation there no reports of this being a detriment to police officers. There are no accounts of CCW licensed citizens shooting cops in either the main stream news media or the police journals such as Law & Order, The Firearms Instructor, or The Law Enforcement Trainer.
Responsible citizens don't shoot police officers - in fact there have been some stories relating how armed citizens have saved an officer's life. In the research paper "The Impact of Gun Laws on Police Deaths," (May 2000, pg 17, by David B. Mustard, Assistant Professor, Terry College of Business, University of Georgia.) a search of incidents where police were shot at by persons with concealed carry permits, determined, "...those who believe allowing private citizens to carry concealed weapons will endanger the lives of law enforcement officials do not even have anecdotal evidence to support them. To date we have no examples of law-abiding citizens with concealed weapons permits assaulting police officers."
Often overlooked, when examining constitutionality of statutes, ordinances and even court decrees, is the police, prosecutor/Attorney General's dual obligation. These sworn government employees, in almost all instances, have taken an oath to not only uphold the laws of their bailiwick, but are also sworn to uphold and support their state constitution as well as the Federal Constitution. This creates the dilemma of whose interest do they represent: theirs, the government, the people? Certainly, it is well established that state constitutions are controlling - take precedence over - mere laws while the Federal Constitution out-ranks state constitutions. Therefore, and since no one can serve two masters, the only question is: if the police and prosecutor/Attorney General defend a law that is, on its face, unconstitutional are they committing misfeasance or nonfeasance?
b) Other SPECIAL INTEREST groups might include the local branch of the Million Mom March, Gun Control, Inc. or even a local ad hoc committee against guns. Though their views are contrary to ours they, nonetheless, are Americans (voters) too and their issues and fears must be addressed.
c) Religious or ethnic groups that are restricted in their abilities to protect themselves or their congregation from physical assaults by their enemies is a serious concern. The history of America is laced with church burnings, synagogue bombings and mosques attacks. To "infringe" their rights to self preservation is not only a violation of their Second Amendment rights, but their First, Fifth, Ninth and Fourteenth Amendment rights as well.
SUMMARY:
Therefore, and until we can amend the Constitution, the 2nd Amendment does not, for all intents and purposes, literally mean exactly what it says. The task we have is to define the gray area before it's defined for us. The rule of law is most certainly with us, however, there is no provision for penalizing a court that ignores, twists or misapplies the mandates of the Constitution.
Any honest person cannot deny the fact that the founders of this great nation did not propose that small children, drunks, crazies or felons be allowed to keep and bear arms. Nor would they have condoned the private ownership of devices that could obliterate entire cities with the push of a button. However, whose "best interest doctrine" served/violated by restricting machine guns, short barreled rifles/shotguns, silencers, assault rifles, Saturday-nite-specials? These "infringements" are on the books, even though the law is on our side, and the facts support us, because we have failed to overcome the "best interest doctrine". When we can show our case to be in the best interest of society and not to a detriment to any special interest group, then we will begin winning our legal battles for our intrinsic right to keep and bear arms.
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Published in Guns & Ammo Magazine: May 2000
© Chuck Klein, 2000
We've always known that many judges and legislators have had trouble understanding certain words and phrases, such as: rights, arms, shall not be infringed. The following is tendered for these "constitutionally challenged" law interpreters and law makers who might have problems with definitions of other common terms.
ESTABLISHING GOVERNMENT:
Our Constitution is unique inasmuch as it was designed to keep the playing field level for the four players in all of life's games. These players are: the governed [citizens], those who make the laws [legislative branch], those who enforce the law [executive branch] and those who mediate [judicial branch]. Each group is independent and simultaneously dependent upon all of the others. This intra-dependence creates a check and balance so that one entity is never in a disadvantaged position. At least that's the way it's supposed to work.
The definitions of the functions of our Constitution are:
* To establish and operate a national government. [Articles I, II, III, VI; Amendments 12,16,17,20,22,23,25];
* To control the relationship between the national government and the governments of the states. [Article I (sections 8 & 10); Article III (section 2); Article IV; Amendments 10,11,18,21];
* To adjust the Constitution to correct for inadequacies or changing times. [Article V];
* To protect and preserve fundamental personal rights and liberties. [Article I (Section 9); Amendments 1-10,13,14,15,19,24,26];
The United States government does a fairly good job of adhering to the first two functions. We are certainly a world power and although all we haven't won all wars, all enemies have been kept from our shores. The second function, the Civil War notwithstanding, has yielded an open and homogeneous collection of states.
The problems start with the latter functions. With the possible exceptions of protecting a "right" to government funding for welfare artists producing obscene "art" works or tax dollars spent on tainted studies; our government has failed on most all other counts at complying with and protecting our Constitutional functions and guarantees. Though the Constitution doesn't specifically spell-out a means of protecting citizen's rights, this function is inherent and intrinsic to a republic. For what other purposes are elected officials in office, than To protect and preserve fundamental personal rights and liberties? Members of Congress are in office to ensure that their employees [government bureaucracies] do not violate any individual, inalienable and intrinsic Constitutional rights. All sworn officials are under an oath to uphold the Constitution - all of it, not just the part that enhnaces their bailiwick.
WHEN GOVERNMENT ENITIES DISREGARD CONSTITUTIONAL MANDATES, WITH IMPUNITY, THE FUNCTION OF GOVERNMENT BECOMES TYRANNICAL.
When elected officials champion or barter for unconstitutional legislation the flood-water effect taints all branches and levels of government. In matters relating to gun rights, the foundation for this illegal flood-water tactic originated with the 1934 Gun Control Act. Here a massive flood of propaganda, under the guise of increasing revenue, placed crippling taxes on certain firearms. This infringement of an enumerated right was a defacto violation of the Constitution's 2nd Amendment. Any official sworn to uphold the Constitution, from the President on down, who has not worked to repeal this blatant violation is not doing his/her duty. Every court, up to and including the Supreme Court, that has ruled, or refused to rule, on the unconstitutionality of the 1934 Gun Control Act and subsequent "gun laws" is in contravention to sworn obligations. Each successive unconstitutional gun law passed since 1934 is a direct result of the flood-water effect. Ergo, if they got away with it once, they can, using endless tax dollars flood the courts, the opinionated media, and the public with tainted studies, law suits and criminal charges again and again.
The provisions have always been in place to make adjustments in the Constitution to correct inadequacies or changing times. Had the legislature, in 1934, wished to ban, outlaw and/or enact exorbitant taxes on firearms they should have amended the Constitution to permit such action. Our Government can tax, regulate or control tobacco, automobiles, drugs - anything except matters specifically protected by the Constitution, sans an amendment.
RIGHTS, LIBERTIES, GUARANTEES:
INTRINSIC: Belonging to the essential nature or constitution of a thing [the worth of a gem]. The essential nature of America is the rights, listed or unlisted, guaranteed by our Constitution.
INHERENT: Belonging by nature or settled habit. Nothing is more natural or of a settled habit than man's right to defend his life and that of his family's. We have an intrinsic and inherent right to keep [own, possess, retain] and bear [carry, hold, support] arms [firearms, guns, weapons]. This listed right is guaranteed by the 2nd Amendment. We also have ANOTHER intrinsic and inherent right to keep and bear arms: The Ninth Amendment to the U. S. Constitution [see Guns & Ammo, Dec. 99]. This latter constitutional protection is quite clear when each word, individually, is defined.
THE 9TH AMENDMENT:
THE ENUMERATION IN THE CONSTITUTION OF CERTAIN RIGHTS SHALL NOT BE CONSTRUED TO DENY OR DISPARAGE OTHERS RETAINED BY THE PEOPLE.
* ENUMERATION: List of items, such as those listed in the Constitution, i.e., right to keep and bear arms, right to peaceable assembly, free speech, etc.
* CONSTITUTION: The basic principles and laws of a nation that determine the powers and duties of the government and guarantee certain rights to the people in it. Refers only to The Constitution of the United States of America as enacted and amended. NOT federal, state or other documents, laws, edicts, statutes or court decrees.
* RIGHTS: Something to which one has a just claim; the power or privilege to which one is justly entitled. The Constitution bestows certain privileges - RIGHTS - that we citizens are entitled to justly claim.
* SHALL: Mandatory, must be done. Contrary to this explicit demand of the 9th Amendment, many courts and elected officials, when it comes to gun rights issues, have ignored their MANDATED obligation.
* CONSTRUED: Interpret: infer, deduce, to construct. To understand or explain the sense or intention of - in a particular way - or with respect to a given set of circumstance. The very act of incorporating the 9th Amendment into the Bill of Rights is construed to guarantee that these listed rights were not the only rights reserved for the citizens. The right to keep and bear arms shall not be construed to mean anything less.
* DENY: To refuse to accept the existence, truth, or validity thereof. Lawmakers and some courts, in violation of this MANDATORY term of the 9th Amendment, have consistently refused to accept the existence, truth and validity of our right to enforce [secure for ourselves] our UNALIENABLE [unalienable is interchangeable with inalienable] RIGHTS to life, liberty and the pursuit of happiness. To acknowledge a right, but DENY a means to enforce or protect the right is not a right at all.
* DISPARAGE: To lower in rank or reputation, degrade. To depreciate by indirect means. If our power to defend our UNALIENABLE RIGHTS is degraded, depreciated or reduced, then those rights, in violation of this amendment, have been DISPARAGED. There is no greater degradation of a right than to restrict the enjoyment or enforcement of this right. If collecting or shooting guns is one's Pursuit of Happiness then any government interference is a disparagement of this right.
* RETAINED: To keep in possession, to hold secure or intact, keep. Rights, listed or unlisted in the Constitution, belong to us, the citizens of the United States, and are not subject to removal, political correctness, DENIAL, or DISPARAGEMENT.
* PEOPLE: Human beings making up a group or assembly or linked by a common interest. The citizens, individually or together, of the United States of American.
* OTHERS: Being the one or ones distinct from that or those first mentioned or implied. Refers to rights, as in other rights - the certain rights first mentioned in the 9th Amendment. These OTHER rights are the UNALIENABLE RIGHTS such as, though not limited to, those self-evident Truths: "Life, Liberty and the Pursuit of Happiness."
Self-evident truths cannot be DISPARAGED, DENIED or CONSTRUED to mean anything else than what they are: God given, American recognized, rights. Any attempt to DENY, or DISPARAGE any of them is a violation of the 9th Amendment. None of these rights are guaranteed by any government. Conversely these rights do not require government action, but compel the benefactor to act out these rights on his own. The person seeking to secure his right to protect his family is obligated to commit some action, such as keeping and bearing arms. It is his duty, not the government's, to secure his personal rights and guarantees. Protecting individual life and liberty is NOT a function of any government. Government's well established civilian defense role is that of protection against foreign invasion, keeping order and seeing that the people's constitutional rights are not violated by its agents, employees and officials.
Therefore, acting individually, each person has the UNLISTED right to use what means available to secure his LISTED as well as his UNLISTED rights. If a government DENIES the use of a firearm to protect one's property or save one's LIFE, this government is disparaging or denying an unenumerated right and thus is in violation of the Constitution's Ninth Amendment.
THE NUMBER OF RIGHTS LISTED IN THE CONSTITUTION ARE NOT THE ONLY RIGHTS KEPT BY THE PEOPLE. AND THAT THESE OTHER RIGHTS SHALL NOT BE DEGRADED, OR DEPRECIATED OR NEGATED BY REFUSAL TO ACCEPT THE TRUTH OR EXISTENCE THEREOF OR BY REFUSING THE PEOPLE, INDIVIDUALLY, THE MEANS TO SECURE THESE RIGHTS.
COMPARATIVE EXAMPLE:
Suppose you and I enter into a contract. A contract is similar to a constitution inasmuch as it lists controlling factors. The contract calls for me to pay you $10.00, the quid pro quo, for the "right" to cross your land. After receipt of my money, you install a fence around your land. I still have the right to cross the land, but you have now DISPARAGED my "right". The very act of your installing the fence is CONSTRUED to be a barrier to keep me from enjoying my "right". Because I am able to climb your fence, you next let loose vicious dogs inside the fence. For all intents and purposes, I am now DENIED my "right" to cross your land. Of course, we can mutually agree to "amend" the contract to allow for the fence or even the dogs, but you, acting unilaterally, do not have the right to "pass a law" by saying, "stay off my land." If either one of us violates the contract [me by giving you a bad check or you by trying to keep me off your land] a civil suit is the proper mode of redress.
Substitute YOU for: Government; CONTRACT for: constitution; $10.00 for: citizenship; LAND for: own and use firearm; RESTRICTING LAWS for: fence; DOGS for: outright prohibitions and the DISPARAGEMENT and DENIALS are obvious. In other words: I have a contract with our government. The contract is in the form of a constitution. The quid pro quo is: as long as I maintain my citizenship I am entitled to the contractual rights. If I lose my citizenship [felony conviction] I have violated the contract and thus forfeit certain rights. The only way the government can change the contract is by amendment [as specified in the contract]. If the government enforces a "non-amended" law that requires me to obtain a permit to own or carry a firearm [install a fence], my "contractual" right to keep and bear arms have been lessened - DISPARAGED. If the "non-amended" law forbids possession of certain types of arms [loose dogs], then I have been DENIED the right to keep and bear that type of arm. 
Unfortunately my only recourse is to wait until I have been damaged [arrested] and then seek redress under the doctrine that the arresting officer [agency] violated a "clearly established constitutional right of which a reasonable person would have known." [Harlow v. Fitzgerald, 457 U.S. 800 (1982) and others]
The Legislative, Executive and Judicial branches of United States of America have, since 1934, systematically perpetuated an open, clandestine, subtle and frontal illegal violation on a certain class of its citizens - the gun owners. These acts of discrimination are evidenced by the passing, enforcing and adjudicating, as legal, "infringing" gun laws that were and are in violation of the U.S. Constitution. Non-gun owners might react: if this is so, why don't the gun owners file a class action law suit to settle the matter once and for all. The dual answer, well known to all gun owners, is, to sue the government you need its permission. It is most unlikely the Government will resist granting permission until it realizes it has, in fact, committed this offense. The realization will only come when political correctness demands it - sort of a "Catch-22". Just like women's voting rights, equal protection, the 18 year old vote and other "wrongs" that had to wait until the time was right. The second reason runs along the lines of the fox guarding the hen house. The gun owners don't trust the judicial branch who has historically ignored constitutional correctness because of the pressures of political correctness.
DEFINING SELECTED ARTICLES:
ARTICLE I. [THE LEGISLATIVE (law making) BRANCH].
SECTION 1. 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.
The meaning is clear: laws can only be made by the Congress. No where in the Constitution are any of the branches of government - INCLUDING THE LEGISLATIVE BRANCH empowered to pass laws in contravention to any constitutionally protected right. The only laws Congress can pass are statutes dealing with and affecting non-constitutionally protected rights. Ergo, the 1934 Gun Control Act and all subsequent "gun laws" are illegal and any officer of the government who enforces any of these laws is in violation of the "clearly established" doctrine.
SECTION 8. The Congress shall have the power...To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
There are only three reasons the militia can be called into service [Congress has authorized the President to exercise this power at his discretion]: 1) to enforce the laws of the United States [the Constitution, Acts of Congress, and treaties]; 2) to quell revolution [acts of revolt against and within the nation]; 3) to defend against an invasion [attack by a foreign power]. It doesn't say to INVADE other countries. There is no power granted to commit troops to a United Nations or any other "world police" force.
ARTICLE II. [THE EXECUTIVE (Enforcement) BRANCH].
SECTION 2. Before he enter on the execution of his officer, he shall take the following oath or affirmation: - "I do solemnly swear [or affirm] that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."
This oath has historically been administered by the Chief Justice of the United States during the inauguration ceremony [January 20th]. However, it may be taken before any officer empowered by law to execute an oath. The oath of office is a requirement compelling the President to enforce the laws of the nation and, to the best of his ability, support the Constitution. Some presidents, in violation of this oath, have "infringed" the enumerated and unenumerated right to keep and bear arms.
ARTICLE III. [THE JUDICIAL BRANCH].
SECTION I. The judicial power of the United States, shall be vested in one Supreme court, and in such inferior courts as the Congress may from time to time ordain and establish.
Though we have three branches of government and a Supreme Court to interpret the meaning of laws, orders and edicts, the Supreme Court is not the controlling and final word. In the words of Justice Felix Frankfurter, "[the] ultimate touchstone of constitutionality is the Constitution itself and not what [the judges] have said about it." [Graves v. O'Keefe (1939)].
Unlike lower courts, the Supreme Court decisions are controlling for the entire nation. However, just winning the case doesn't guarantee success. Enforcement is sometimes necessary. Some factions, who are negatively impacted by or politically opposed to a decision, often ignore or evade their responsibilities and work to get around court orders. Enforcement, of course, is up to the Executive Branch. If the decision is not to the liking of this branch, it stands to reason that enforcement might be slow, difficult or non-existent.
Noncompliance of legal demands is a serious threat to the entire country on every level. One flagrant example of noncompliance is the decades-long reluctance of many school boards to comply with the Brown v. Board of Education desegregation ruling. More recently, many schools are "skirting" the school prayer restrictions by any number of means, including posting privately funded copies of the Ten Commandments or encouraging voluntary prayer classes. AND, of course, The Courts own ignoring the constitutional violations by allowing enforcement of thousands of laws that "infringe," "disparage" and routinely "deny" the intrinsic and constitutional "rights" to keep and bear arms.
SOLUTIONS:
We must work to change political correctness. Name calling, promoting contemptuous "bumper stickers" and other forms of cheap shots only hardens the perception non-gun owners have of us. Write - non-insulting - letters to the editor of your local papers and to your elected representatives pointing out the hypocrisy of political correctness over constitutional correctness.
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Can You Pass The Test? Can Your Elected Officials?
Published in Guns & Ammo Magazine: June 2001
© Chuck Klein 2001
We don't belong to the National Rifle Association, The Second Amendment Foundation, or other like pro-rights organizations to promote busting clay birds, punching holes in paper targets or even to hunt. We belong because we are fearful of a government out of control that is actively and secretly working to stop us, to preclude us from protecting ourselves, our families, our property, our town, our state and our country.
Sure, we'll give up our guns...when there is no need for prisons, mental illness is cured, when all the evil in the world is vanished, when all governments beat their swords into plowshares. Baring that, there is no doubt that each of us would surrender all of our guns - when they pry them from our cold dead hands.
It's self satisfying to engage in the passive activity of reading pro-gun books and articles, listening to gun-rights speeches, issuing "cold dead hands" rhetoric or swapping sermons with fellow pro-gunners. The problem is, few, if any, of these "preaching to the choir" discourses enlighten our detractors.
Recently I attended a grass roots, pro-gun meeting as a guest speaker. There were about 50 men and women ranging in age from the twenty-somethings to the sixty-somethings. They covered all walks of life from farmers, to computer gurus, to retired police officers, to small business owners - just regular people. It struck me that though we were all different we all had a certain common strength. Not just the obvious bond of our interest in firearms, but a much more compelling attachment. This covenant, this union, could be seen in the eyes, heard in the speech and, experienced as a sixth sense. Being mostly strangers to each other, there was, nonetheless, an over-powering feeling of security and freedom - trust. There was a distinct feeling that we're all on the same page and if there was some kind of American rights test, we'd all do well.
Know Rights, Know Freedom
No Rights, No Freedom Perhaps, it would be more educational if we work to hone our own knowledge while, in a non-threatening way, point out the misconceptions our opposition harbors. On a separate sheet of paper take the following multiple-choice/best-answer test. Then clip it out, copy it and send it to your elected officials, local newspapers and known (to you) anti-gun Americans. The answers, appear below.
This is not a "Who Wants To Be A Millionaire" quiz. This is far more serious matter than mere money. "Life lines?" You're the life line in passing on and preserving American rights and principles to the next generation. My guess is readers of Guns & Ammo will do very well on this test, while gun control advocates won't.
1) The Bill of Rights is:
a) The first ten articles of the U.S. Constitution;
b) The first ten amendments to the U.S. Constitution;
c) International POW list of rights;
d) None of the above.
2) The American Civil Liberties Union [ACLU] is a:
a) Private entity dedicated to preserving all constitutional rights;
b) Private entity dedicated to preserving all constitutional rights except 2nd Amendment rights;
c) Government entity dedicated to preserving all constitutional rights;
d) Government entity dedicated to preserving all constitutional rights except 2nd Amendment rights.
3) The right to Life, Liberty and the Pursuit of Happiness is first mentioned in:
a) Declaration of Independence;
b) Gettysburg Address;
c) Preamble to the U. S. Constitution;
d) ACLU Preface.
4) The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. This, the Ninth Amendment to the U.S. Constitution, means:
a) Only the rights listed in the Constitution are exempt from being denied or disparaged;
b) The people retain the right to determine which rights shall be denied or disparaged;
c) Regardless of what rights are listed in the Constitution, there are other rights that the people retain for themselves;
d) None of the above.
5) What best describes the United States of America:
a) We are a nation of laws and all persons found therein must obey the laws of the land;
b) We are a nation of Constitutions. Laws, statutes, court decrees, executive orders are subservient to the Constitution;
c) We are a common-law nation;
d) None of the above.
6) The "keep and bear arms" clause of the Second Amendment to the U.S. Constitution is:
a) A guarantee that the people have a right to own and carry arms;
b) A mandate on the Federal Government not to violate the right of the people to own and carry arms; c) A Guarantee that the militia of the states have the right to horde arms for protection of their state and from invasion, insurrection or control of the constituents;
d) A guarantee that the Federal Government will not have its right to horde arms infringed.
7) "When in the course of human events it becomes necessary...to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and Nature's God entitle them...." is the opening lines to the:
a) Constitution of the United States of America;
b) Articles of Confederation;
c) Declaration of Independence;
d) Gettysburg Address.
8) Qualities The National Rifle Association is dedicated to:
a) Firearms safety education as a public service;
b) Marksmanship training as a contribution to individual preparedness for personal and national defense;
c) Lobbying state and the federal government on behalf of and in the interest of its members;
d) All of the above;
e) Both a and b.
9) Before retiring for the night, you should check to see if:
a) Everyone is home that should be;
b) The doors are locked and night lights set:
c) Your home defense device is in place and undisturbed;
d) All of the above;
e) Both a and b.
10) In relation to using or handling firearms, the rule: "Don't Mix Alcohol and Gunpowder" Means:
a) Ingesting alcoholic drinks might impair judgement thus creating dangerous conditions;
b) There could be an explosion;
c) Firearms can't function when subjected to alcohol;
d) There is no such rule.
11) In the noted court case, Riss v. City of New York, the court created the rule, referring to the police, that "Because we owe a duty to everybody, we owe it to nobody," This ruling, like many similar rulings, means:
a) The police have the right and duty to carry firearms to protect the citizen;
b) The police have the duty to protect the individual citizen;
c) The police do not have the duty to protect the individual citizen;
d) The police have no duty to protect anyone other than themselves.
12) Suppose you are driving your car and another driver forces you off the road. You both stop, about 50 feet apart, and exit your vehicles. The other driver, who is about your size, then starts to walk toward you while carrying a raised tire iron and saying he's going to beat you to a pulp. You immediately back up and shout, "I'm sorry. I'll just get in my car and go away." The other driver lowers the tire iron, turns and starts toward his car. At this point you draw your gun that you legally carried and shout, "If you don't get out of here, I'll shoot you dead." He turns toward you, raising the tire iron. Would you:
a) Be justified in using lethal force because he has committed a felony by threatening you and if he escapes you might be liable for any other injuries he causes;
b) Be justified in using lethal force because he represented an immediate threat of death or great bodily harm to you;
c) Not be justified in shooting because the threat had passed and you re-opened the altercation, thus becoming the aggressor and therefore losing your right to self-defense.
d) Not be justified in shooting because a tire iron is not a lethal weapon;
e) Both a and b.
ANSWERS:
1) b. At the time of the drafting of the Constitution, a number of states indicated they would not ratify the Constitution unless a list of individual rights were included.
2) b. Though the ACLU likes to sing their praises of guarding individual civil rights, they have taken the position that the 2nd Amendment is only a states right and not an individual right to keep and bear arms (
3) a. These inalienable rights are some of the "other" rights referred by the 9th Amendment.
4) c. The right to life, liberty, pursuit of happiness noted in the Declaration of Independence, are only the beginning of the unenumerated (unlisted) rights. Others include, but are not limited to, the right to be presumed innocent until proven guilty, the right to defense of one's self, family and property, the right to be let alone....
5) b. This is the rule of law of our country and what distinguishes it from other nations. Nothing, absolutely nothing, rises above the dictates of our Constitution.
6) b. The right of American citizens to keep and bear arms is inalienable and inherent to America. The purpose of the 2nd Amendment is to keep the Federal Government from infringing or restricting this right. Since ratification of the 14 Amendment, the states are also precluded from infringing upon this intrinsic, individual right.
7) c. This is the opening salvo where the newly formed USA is laying out the reasons why they are declaring their independence from England.
8) d. This long standing American institution was historically concerned only with training and education until the late 1960's. It was then that they were forced to form the lobbying arm, Institute for Legislative Action, to fight for gun owner's rights. The ILA was necessary because our detractors had begun a concerted effort to usurp or violate our constitutional rights.
9) d. Prudent people should routinely make these observations including checking their "home defense device" which can be anything from a firearm to a baseball bat to the telephone.
10) a). Aside from the civil liability, in most states it's a criminal offense to handle or have control over any firearm when under the influence of alcohol.
11) c. Contrary to what many believe, if you call the police to save you from a criminal attack and the cops arrive to late to help or don't show up at all, there's nothing you can do about it. Police only have a duty to protect the citizenry in general - not individually.
12) c. If you carry a concealed weapon in public, you can't go around trying to egg someone on so you can bring out the hardware to blow them away.
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Can You Pass The Test? Can Your Elected Officials?
Published in Guns & Ammo: July 2001
© Chuck Klein, 2001
So you did well on Part I, eh? Glad to have you on the team. A lot of people can scored well in trivia contests, but this is not an exercise in trivia. Those who call themselves Americans, yet fail to comprehend what it means to a responsible citizen are a danger to us all. We're constantly engaged in an uphill battle against honest (though misguided) men and women as well as the biased media. To change the totally false image of American gun owners, portrayed by the controlling news agencies as unkempt, uneducated know-nothings, we must not only be better prepared than our adversaries, but we must - while holding a civil tongue - help them to learn the truth.
When addressing those who have trouble understanding our Constitution, always try to keep in mind that they are just like us: They love their children, their pets, their spouses and are committed to what they honestly think is best for their country - or course, this attitude led to most of the 20th Century's major conflicts.
Guns & Ammo urges you to challenge your local media, elected officials and anti-gun groups to take the test. You might not get any takers out of fear of embarrassment. However, that resistance can be useful by pointing this out in letters to your local editor. Send a letter about your experiences in trying to educate our detractors to Chuck Klein, c/o Guns & Ammo, Wilshire Blvd., L.A. CA 90048
NOW HERE'S PART II (answers below)
14) Exercising your right to self-defense when under attack, and when there is no other option, shooting to wound is:
a) Not recommended because it is nearly impossible, under stress of a lethal force incident, for even the best of marksmen to stop a deadly attack by intentionally wounding;
b) Not recommended because wounded persons can be very dangerous. A wounded person may not cease his/her life threatening actions and can intentionally or unintentionally kill innocent bystanders;
c) Not recommended because the most effective means of immediately stopping a deadly assault is by causing your bullets to strike the largest area - center mass - of your assailant's body;
d) All of the above;
e) Rather than risk a murder charge or the taking of another's life, shooting to wound is the preferred method of dealing with lethal force encounters.
15) During a lethal force incident the last thing a morally responsible, prudent person wants to do is:
a) Be Killed;
b) Be labeled a coward;
c) Kill another person;
d) Lose his license to CCW.
16) From less than 15' away a stranger, for no apparent reason, raises a knife above his head, starts toward you while shouting at you, "I'm going to kill you." You have a handgun, cannot escape. Your primary objective is to:
a) Kill the man with gunfire;
b) Stop the man with gunfire;
c) Shoot the man in the leg or knife hand;
d) Prepare to grab his knife hand while kicking him in the groin.
e) Draw you gun, but do not shoot until he has actually injured you.
17) Jury Nullification means:
a) The right and power of a jury to judge both the law (as to its constitutionality) and facts of a case;
b) The right and power of a judge to nullify the decision of a jury;
c) In cases where the issue of self-defense is raised, the jury is nullified from issuing a decision;
d) The legal term when the vote of a juror is nullified by the majority of the other jurors.
18) The "self-evident truths," mentioned in the Declaration of Independence, include:
a) That they are endowed by their Creator with certain unalienable rights;
b) That all men are created equal;
c) Life, Liberty, and the pursuit of Happiness;
d) All of the above;
e) Both b) and c).
19) The Declaration of Independence mentions, "unalienable rights"; Some of which are:
a) The right to own personal and real property;
b) The right of inheritance and bequeathment;
c) The right to protect yourself, your property and your family;
d) All of the above;
e) None of the above. Only rights specifically mentioned are protected.
20) Article I, Section I of the Constitution declares, "All legislative powers herein granted shall be vested in _________"
a) The Executive Branch;
b) The House of Representatives;
c) The Senate;
d) All of the Above;
e) Both b and c.
21) Article II, Section 4 says: "The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery or other high crimes and ___________."
a) Felonies;
b) Misdemeanors;
c) Violations of the Law;
d) None of the above, the sentence ends with the word, "crimes".
22) Self-defense means:
a) The physical act of defending yourself or your family;
b) A legal term that carries with it the burden of proof;
c) Negligent acts that result in the death of another;
e) Both a and b.
23) The killing of one human being by another is called:
a) Murder;
b) Negligent homicide;
c) Excusable homicide;
d) Justifiable homicide;
e) Any of the above.
24) The purposeful and unlawful killing of one human being by another is called:
a) Murder;
b) Homicide;
c) Excusable homicide;
d) Justifiable homicide;
25) Americans gun owners want everyone to own guns:
a) Period;
b) Who want to own guns;
c) Who want to own guns and who are not precluded by law (drug abusers/alcoholics/felons, etc) from owning guns;
d) Who want to own guns, but only if they are licensed by their state.
26) The American right to keep and bear arms is inherent; which means:
a) It is subject to state regulations;
b) It is subject to Federal regulations;
c) Not subject to any restrictions inasmuch as it is an intrinsic or basic right;
d) Right to keep and bear only the arms as they existed at the time the Constitution was written.
27) If somehow, magically, all guns would vanish from the earth:
a) We would be free of all crime and violence;
b) There would still be thugs and criminals who would use bats, bricks, knives, etc., to terrorize the those physically unable to defend themselves;
c) The police would be better able to protect us because they wouldn't have to fear being shot;
d) None of the above, there would be no impact on society.
28) Many anti-gun people identify themselves as possible victims and thus:
a) Create defense mechanisms to satisfy irrational beliefs of neighbors killing each other and the infallibility of police protection;
b) Attempt to regain control of their fears by controlling gun owners, whom they perceive as the enemy.
c) Harbor excessive rage at people who they perceive as not victims, such as gun owners who are willing and able to prevent their own victimization;
d) All of the above.
29) Guns in the hands of civilians licensed to carry a concealed weapon account for:
a) The prevention of tens of thousands of crimes per year;
b) The deaths of hundreds of police officers per year;
c) The saving of many lives per year;
d) None of the above;
e) Both a and c.
30) The 14th Amendment clause, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;", means:
a) The privilege class of U.S. citizens do not have to comply with state laws;
b) The term "state" in this clause refers to foreign states (countries) and as such these foreign "states" can't enforce laws against U.S. citizens.
c) This clause does not exist.
d) No state of the United States can pass or enforce laws that take away any rights held by or granted to citizens of the United States.
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ANSWERS:
14) d. Shooting the gun out of the attacker's hand or other "trick" shots are only found in the movies.
15) a. The "second" to last thing a morally responsible, prudent person wants to do is kill another person - but the last thing he wants to do is be the victim. Everything else is tied for 3rd place.
16) b. Saving yourself from eminent death or great bodily harm is only accomplished by STOPPING the attacker. If he dies as a result of your legal action, tough cookies. If your purpose is to kill him - you might be have to answer to criminal charges relating to willfully killing a person.
17) a. Judges are reluctant to disseminate this little known right and jury power because many of them believe juries lack sufficient education for deciding the intricacies of the law.
18) d. Every American should have these unalienable rights imprinted on his mind.
19) d. Though these, and many other rights, are not specifically enumerated (listed) in the Constitution, they are nonetheless bona fide, unalienable - cannot be taken away - rights.
20) e. Only the Congress (the House and the Senate) have the power to make laws. Though it has yet to be addressed by the courts, Presidents have issued executive orders which have the same impact and effect of a law duly enacted by Congress. An example of such "law" was President Clinton's restricting the importation of certain firearms.
21) b. It is well established that, while in office, Bill Clinton committed perjury, a misdemeanor, in the "Monica Lewinsky matter." Those Senators who voted not to convict in his impeachment trial were not fulfilling their oath of office to uphold the Constitution.
22) e. If you use physical force against someone in defense of yourself, you might be forced to present the legal defense of self-defense in court. When raising this legal tactic, the burden of proof is on you to prove you were justified in your use of force.
23) e. Reasons for taking the life of another human ranges from Murder (unlawful and willful) to Negligent Homicide (your fault auto accident) to Excusable homicide (willful but legal, such as the executioner at the state prison) to Justifiable homicide (you were justified because he was trying to kill you).
24) a. If you killed someone on purpose, but legally (such as in defense of your life), then it's Justifiable. But if the purpose was not legal (during a bank robbery, you shot the teller) then it's Murder.
25) c. American citizens who are law abiding and subscribe to the rule of law - our Constitution - believe everyone WHO WANTS TO and is of the legal age and who is not impaired by mental deficiency, alcohol, drugs or has not committed crimes of violence, has the right to exercise their Constitutional rights to keep and bear arms.
26) c. We have, via the 9th Amendment, the inalienable (cannot be taken away) right to protect ourselves, our family and our property. Just as inherent (essential character, settled habit, intrinsic) is the right to use what tools (firearms) are available to secure or exercise any and all of our rights. To put it still another way, if one has the right to life but no pragmatic way of enforcing this right, then one has no right to life at all.
27) b. As testimony to the prison population, there are many bad and mean people out there. Removing guns from society will only make it easier for them to prey on the elderly and weaker members of society. When confronted by a thug, historically and currently, it's the firearm that is the best tool to level the playing field.
28) d. The problem is not that there are many of these psychologically and mentally confused persons in our country, it's that they want to force the rest of us to adhere to their warped perception by enacting and enforcing unconstitutional laws.
29) e. The anti-gun press has been quite successful in keeping these numbers from circulation. The NRA, for over 50 years, has been publishing, monthly, documented accounts of instances where a gun was used (not necessarily fired) to save a person. John Lott's book, "More Guns, Less Crime" further certifies the vast number of times a firearm has been used as a defensive tool.
30) d. If one has a right, such as the right to keep and bear arms or to self protection, as a citizen of the USA, then no state of the United States can take that right away. State laws that restrict an American citizen's right to own, use or carry any firearm are in contravention to this mandate.
0-3 Missed: Well Educated Patriot. I'd trust my backside to you.
4-8 Missed: Keep Reading Guns & Ammo. We can stand together.
9-11 Missed: Some Serious Study is needed. I might keep an eye on you.
More than 11 Missed: You're part of the problem and a danger to the American Way of Life.
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WHAT WORDS DON'T THE ANTI'S UNDERSTAND?
Published in Guns & Ammo: September 2001
Chuck Klein, 2001
Too many times I find myself in discussions with another person where we both might be on the same page, but end up comparing apples to oranges. In most all cases, the difficulty with verbal intercourse is due to either a misunderstanding or unfamiliarity of certain terms. Many words have more than one meaning, especially in the English language, lending more confusion to communication. Some organizations, such as our military, "coin" or write their own definitions of words to fit a particular situation.
Used to be the goal of a soldier was to kill the enemy. Today, the military talks about "servicing the enemy". Does that mean kill? Injure? Wound? Change his oil? With the use of special definitions, as in "servicing the enemy," the term can be made to mean what ever the military heads want it to mean on any given occasion. Gun grabbers have always tried to read different meanings into even some of most obviously common terms.
In hopes of furthering our goals of educating the public, we, the pro-gunners, might better "service the enemy" if we made sure of our definitions. The reader is encouraged to copy this article and send it to his local newspaper, elected officials and selected anti-constitutionalists. In your correspondence, please be careful not to offend our adversaries as they, just like us, love mom and apple pie and truly believe their cause is what's best for America - just like Adolf, Sadamn, Pol Pot, Attila....
AMENDMENT #2:
The controversy of the 2nd Amendment exists because, erroneously, some have insisted that "the right to keep and bear arms" is a state (as in Ohio, Texas, Florida) right and not an individual right. However, it is clear that the first clause, "A well regulated militia being necessary to the security of a free state," means a free America. The word "state" means: nation/country such as "the State of Israel" or "the Arab States" or "Secretary of State". In other words, the nation/country can best form a "well regulated militia" (army/navy) if its militia (originally, men between the ages of 18 and 45) are free to "keep and bear arms". The second clause says it is "the right of the PEOPLE [not the state] to keep and bear arms" (see Klein's column GUNS & AMMO: The Second Amendment: Black & White or Gray? [2-01]).
AMENDMENT #9:
The Madisons, Jeffersons and other framers of our most-sacred-document knew well that the evil that lurks in man could work to usurp individual rights. Therefore, in order to further protect our inalienable rights they included the Ninth Amendment. Here we see that not only are our other rights protected, but these other rights cannot even be reduced in meaning or intent. This simple, yet powerful demand commands: The enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people.
It is clear the framers intended to recognize certain intrinsic rights such as the rights to life, liberty and the pursuit of happiness - as noted in the Declaration of Independence. Of course, if one has this right, but is DENIED the means (use of arms) to defend and protect this life, etc., then this right has been DISPARAGED (lowered in rank or reputation, degraded or depreciated by indirect means). To deny or disparage a right is a violation of this Constitutional provision (see Klein's column GUNS & AMMO: The Other Right to Keep and Bear Arms [12-99] and Definitions Even the Constitutionally Challenged can Understand [5-00])
AMENDMENT #14:
Though this amendment makes no reference to firearms, it is important because it restricts the individual states from infringing on individual citizens federal rights. Section I, second sentence: No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.... Therefore, if one has a right (aka privilege or immunity) as a citizen of the United States; Ohio, Virginia or any other state cannot pass any law that negates that right.
AMICUS CURIAE:
(a-mye'-kus ku'-ri-ee) Latin term for friend of the court. Any person may present to the court information of which that person believes the court should be informed. Next time one of your local courts is hearing a firearm related case, consider submitting your views on the case to the court.
COMMON LAW:
Principles of law which are based on custom or judgements of courts rather than upon enactments of written law. Though our nation is based on custom and historical decree, we are not a common-law nation - we are a statutory country whereas only conduct expressly forbidden by statute is punishable by law.
CONSERVATIVE:
A person whose political thinking is to the right side of political scale. Conservatives lean toward viewing less government control as being better than more control. One who tends to believe in conserving or preserving established rules and traditions and one who believes that when change is needed, the proper procedures should be adhered.
CONSTITUTION:
Basic and underlying system of rules of which all other laws and behavior is judged. The supreme law; the rule of law.
KLEIN'S LAW OF LAWS:
"We are NOT a nation of laws - we are a nation of constitutions. Laws, statutes, court decrees, presidential edicts are subservient to constitutions."
CONSTITUTIONAL CORRECTNESS:
Sometimes called Strict Constructionist. Persons, in a republic, who believe in a rigid adherence to the rule-of-law. These citizens believe that if the majority of the citizens wish to place controls on firearms the only legitimate method is by conforming to constitutional provisions, i.e., amend the Constitution.
CRIME:
An act which has been determined (by enactment of a law) to be injurious to the public. We are a statutory nation inasmuch as unless there is a statute against a certain act, the act is not a crime. If the subject statute is in violation of any constitutional provision, it is not a crime to violate that statute.
DEMOCRACY:
A nation that is governed by the concept of majority rules. In a true democracy the people decide all issues by what ever the majority wishes. This is accomplished either by direct election or indirectly through elected representatives. Without any guiding provision, such as a constitution, the rules of conduct change as the majority of the population changes. If the majority is comprised of X persons, they can repress or control Y persons.
If there is a shift in population where Y persons suddenly become the majority, then they are free to discriminate (retaliate with their vote) against X persons. America is not a democracy, it is a republic (see REPUBLIC and RULE OF LAW) where this discriminating practice is negated. Some liberals (see LIBERALS) erroneously believe they can enact and enforce anti-gun statutes, merely by garnering the majority of votes to pass restrictive gun laws.
INALIENABLE: (aka unalienable) Something that cannot be taken away. An intrinsic right such as the right to life and with it the right to use what tools (firearms) necessary to protect that right (see AMENDMENT #9).
JUDGES:
Our forefather's realized that judges not only represent the government, but being human they carry their own prejudices. Because of this, the framers of our Constitution did not require judges to swear to tell the whole truth and nothing but the truth. In all criminal proceedings witnesses who are going to testify before a jury must swear, under penalty of perjury, to tell the whole truth. The judge is immune to this rule of law because he, like the prosecutor and defense attorneys are not expected to testify.
There is no constitutional provision for judges to "instruct" juries on how to reach their decision and it is an abuse of their powers to define or judge the law. Unfortunately, a practice has evolved where judges do testify in the form of their "instructions" or "charges" to the jury. It is during this "testimony" -- this propagation of their own power -- that the judge will NOT tell the whole truth. The whole truth being a juries right and power to nullify a law for being unconstitutional (see JURY NULLIFICATION). (see Klein's columns GUNS & AMMO: Judicial Accountability and the Slippery Slope [5-99] and Take Charge and Apply the Constitution [10-98]).
JURY NULLIFICATION/PEROGATIVE:
The right and power of a jury to determine the facts as well as the law in a criminal case. Though most judges insist on deciding all matters relating to the application of the law, it is the jury that has the prerogative to judge the constitutionality of any law. Judges have been known to have denied seating jurors who even knew of this right. For a jury to nullify a certain law because they don't like the law or feel the law is morally wrong is a violation of a juror's duty. Nevertheless, jurors are obligated, when addressed during summation, to declare a law nullified if in fact they, the jurors, find the law violates, or is not in accordance with, the constitution.
"The jury has a right to judge both the law as well as the fact in controversy." John Jay, 1st Chief Justice U.S. Supreme Court, 1789.
"The law itself is on trial quite as much as the cause which is to be decided." Harlan F. Stone, Chief Justice U. S. Supreme Court, 1941.
"The pages of history shine on instances of the jury's exercise of its prerogative to disregard instructions of the judge...." U.S. v. Dougherty, 473 F.2d 1139 (1972).
If called for jury duty and the judge asks if you will comply with his instructions or follow the law as given by the trial court, consider replying: "I agree to follow all instructions, laws, rules and statutes if these instructions, laws, rules, and statutes are not in conflict with this state or our Federal Constitution" (see Klein's columns GUNS & AMMO: Taking Charge [2-98] and Take Charge and Apply the Constitution [10-98]. Also: A Dirty Little Judicial Secret What the courts and judicial branch won't disclose or even acknowledge).
LAW:
Rules, statutes, constitutions, customs and practices a society has established to regulate and control the actions of its constituents (see Rule-of-law).
LIBERAL:
A person of the left side of political beliefs. Considers more government control to be better than less control. Persons who view our Constitution as a guideline inasmuch as they believe it can be twisted and molded to fit the political correctness du jour. These people resent living in a REPUBLIC - at least until their ox is gored.
LIBERTARIAN:
a person who believes in full individual freedom and a very limited size and role of government. It has been said that a REPUBLICAN is one who was robbed last night; a DEMOCRAT is one who was arrested last night and a LIBERTARIAN is one who shot the person robbing him.
MALA IN SE:
(Latin) Acts that are wrong in and of themselves - morally wrong. American's don't need a law to tell us that murder is wrong. Championing (voting) to pass laws that violate one's constitutional or inalienable rights is mala in se (see Klein's column GUNS & AMMO: The Evolution of Rights and Wrongs in America [11-98]. Also: Evolution of Rights and Wrongs A look at how our rights have been eroded and some suggestions on how to fix them.)
MALA PROHIBITA
Acts that are wrong only because society says it's wrong. Parking your car in a no parking zone is only wrong because a law says so.
MALFEASANCE:
The unjust or illegal performance of an act for which the person has no right to do. A politician or other government employee who steals from the public till, or almost any and all events surrounding Waco (see MISFEASANCE; NONFEASANCE).
MISFEASANCE:
A lawful act done in an unlawful or wrongful way. President Clinton had the legal authority to pardon anyone he wished. However, exercising that right in an unlawful manner (taking money to pardon someone) is misfeasance. A police officer, under color of law, arresting a person without cause. Or, a political who votes to pass pass unconstitutional laws (see NONFEASANCE; MALFEASANCE).
NONFEASANCE:
Failure to preform an act one is required to do. An example would be: You use a gun to ward off a criminal attack, the police confiscate your weapon as possible evidence, but refuse to return it to you, without due process, after completion of the investigation/trial (see MISFEASANCE; MALFEASANCE). POLITICAL CORRECTNESS: A slang catechism meaning LIBERAL thought- of-the-day or the most expedient thing to do regardless of legalities. For example, those who desire to restrict or control firearms by passing unconstitutional laws, will justify their position with the pseudo belief that their actions are in the best interest of society.
Acts of MALFEASANCE or MISFEASANCE by violating the constitution for any reason is always counter to the best interest of the American society. (See MALFEASANCE, MISFEASANCE also see Klein's column GUNS & AMMO: Judicial Accountability and the Slippery Slope [5-99].
REPUBLIC:
A nation operating under a RULE-OF-LAW where its citizens have the sole power to elect representatives to enforce the rule-of-law and conduct the nation's business to the best interest of its citizens. The difference between a true democracy (see DEMOCRACY) and a republic is in a democracy the majority rules, i.e., there is no controlling factors (constitutions) to hinder the will of the majority of the citizens or their representatives. In a republic, the citizens/representatives can only act in accordance within the established rules-of-law. Of course if the majority wishes to act in contravention to their own rule-of-law (a constitution), they must first change the rule-of-law (constitution).
RIGHTS:
aka privileges or immunities. That which belongs to a person by law, nature or tradition (see: INALIENABLE). RULE-OF-LAW: An organization (including a nation) that has agreed to live (operate) by a set of pre-established rules or laws and that these codes take precedent over all else. The U.S. Constitution is our rule-of-law inasmuch as it is the set of laws to which all other laws, statutes, ordinances, court orders and executive edicts must conform.
SUPREME COURT:
The court of last resort. Contrary to what some believe, the Supreme Court does not have to hear a case. It can choose which cases it will decide. The only appeal to a Supreme Court ruling is by amending the Constitution. The Supreme Court has the right and power to interpret the law, but it does not have the right to act in violation of the Constitution. There have been a number of instances where their rulings violated the Constitution. The most infamous affront to our rule-of-law being the Dred Scott decision where the Court ruled that African Americans were not citizens. Just because the SC says thus-and-so does not make a usurpation of the Constitution legal. Ergo: if the SC someday rules that we don't have the right to keep & bear arms; their ruling will be null and void as it will be a violation of the Second, if not the Ninth Amendment.
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Published in Guns & Ammo: January, 2002
© Chuck Klein, 2002
PURPOSE & REASON:
The purpose and reason for establishing America was clearly spelled out in the Declaration of Independence with words and phrases such as: "...laws of nature and nature's God...all men are endowed by their Creator...unalienable rights...." We were doing away with a system of government control to one of rule of law by individual dominion. Though some matters, such as those listed under the Articles of the Constitution, are best left to government supervision, all other affairs, as evidenced by the Bill of Rights, are at the pleasure of the individual citizen. Had the authority of who can keep and bear arms been designated as a state or federal right it would have been included under Articles I or II of the Constitution.
The purpose and reason for the Bill of Rights is a formal reminder that certain powers and rights are off-limits to the Government.
THE SECOND AMENDMENT SAYS: A well regulated militia,
The instrument is saying that it is DESIRABLE to have available a militia (whole body of able bodied men subject to call into military service). And that this body of men be "well regulated" (marksmen). This was only a wish because under the Constitution (Article I, Section 8) the Government is powerless to maintain a standing army. Therefore, and in order to be sure that the "militia" is available should it be necessary to raise an army, it would be better for everyone if the "militia" were not only armed, but carried their arms with them. In those early days the people feared attack from foreign powers, criminals or savages. Today, though the people are not under threat of foreign invasion, they are still subject to assault by terrorists and criminals, savage or otherwise.
being necessary to the security of a free state,
One reason for the controversy of the 2nd Amendment is because, erroneously, some have insisted that "the right to keep and bear arms" is a state right (as in Ohio, Texas, Florida) and not an individual right. However, it is clear that "free state," means a free America. The word "state" means nation/country, as in "the State of Israel" or "the Arab States" or "Secretary of State". In other words, the nation can best form an army and navy if its militia are not restricted from keeping or bearing arms. The meaning is obvious; the Constitution acknowledges the right to keep and bear arms while at the same time encourages the individual citizen to keep and bear arms for personal security and against insurrection or foreign invasion.
TIMES MIGHT HAVE CHANGED THE NEED TO RAISE AN ARMED ARMY, BUT TIMES DON'T CHANGE THE CONSTITUTION.
There is no mandate, provision or article in the Constitution requiring the government - state or Federal - by any means or in any form, to provide protection for the individual citizen. In fact the contrary is true. Numerous Supreme Court rulings have reiterated the premise that the government's only duty is to protect the citizens, per se. The only constitutional reference to physical protection is the Federal Government's guarantee to protect the STATES "against invasion; and...domestic violence" (Article 4, Section 4). The state's (Indiana, Iowa, etc.) might need their own "state's guard" for protection against a federal government run amuck. However, their needs, though real, might be counter to individual citizen's needs and fears including the possibility that both the state(s) and the nation might, together, conspire against the individual citizen.
the right of
These three words signify that the right is pre-existing (intrinsic). The framers not only acknowledged this inherent right to keep and bear arms, but went on to say this pre-existing and natural liberty shall not be infringed. The Second Amendment, without these three words, is only an acquired power, and as such, is subject to interpretation and/or repeal.
the people to keep and bear arms,
It DOES NOT say the STATE.... It says, the right of the PEOPLE. The Bill of Rights is about people's (individual) rights not about states' rights (which are outlined in Articles I, III, IV). If the framers had intended the prerogative to arm to be a states' right (such as Ohio, Texas, etc.) the Second Amendment would have read something like: "The power of the STATE to arm its militia shall not...." As to the Federal Government, they already had the means and power to arm citizens (raise armies) and didn't need an amendment to tell themselves, the states or anyone else not to infringe upon their exclusive authority.
shall not be infringed.
Shall is mandatory. It does not mean maybe or at someone's or some agency's discretion. The Constitution, in particular its first ten amendments, acknowledges certain individual rights and guarantees. One such pledge and warranty NOT granted is the individual's right to expect the government to protect him. The framers believed that because the individual had the right to keep and bear arms there was no need for the government to be saddled with that responsibility.
JUST WHO ARE THE "PEOPLE" WHO HAVE THE RKBA:
In Eighteenth-Century England only the aristocratic (the ruling class) were empowered to defend honor and country. Whereas, at the time of the our Constitution's inception the framers, all "men" in a "man's world," clearly gave little thought to anyone other than the common man as the defender of family, property or country. This concept of ALL men being full "citizens" and having the right and obligation to serve and protect was unique to America.
An American citizen, circa 1785, was considered to be any white, male, over the age of 21 and not a felon. The idea of civilian gun controls was unconscionable. It is also inconceivable that a Thomas Jefferson or a James Madison would refuse to take a musket away from a drunk, a child or someone conspicuously deranged. Had one been able to ask these learned, most-sacred-document framers of the conflict of such a restrictive action; they most likely would have replied with words to the effect that the drunk or mental incompetent were, at least, temporarily not citizens. A child was, of course, not a man and a felon had forsaken certain rights of citizenship.
With the ratification of the 13th, 14th and 19th Amendments ALL of-age Americans were recognized as full, ruling-class citizens. Arms possession was, AND STILL IS, the signature of being a citizen - not a subject to some monarchy and most assuredly not mentally inept, a child, a felon, or a substance abuser.
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Published in Guns & Ammo Magazine, October 1998
© Chuck Klein, 1998
It was the flintlock that backed up our new concept to the tyrannical British. Four score and seven and percussion arms tested this philosophy. Smokeless-powder-powered-machine-guns in the hands of our eclectic troops proved our ideals to the world, over there. High-speed-small-caliber-select-fire, plus introspection, saved us in those bitter cold and the steamy hot places. Now, those that have failed to learn from history are wearing away at parts of this concept -- the requisite that all Americans, including their government, must live by the constitution.
BASIS:
The Preamble to our Declaration of Independence put into words the most basic rights of mankind: "When in the course of human events it becomes necessary...to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and Nature's God entitle them...." What "Laws of Nature" could our forefathers have been referring to other than the natural law of self preservation?
Somehow we have allowed our governments, both state and federal, to negate some of our "Laws of Nature." The reasons why, greed, power, basic human insecurities, are not important. What is vital is that we, using the very foundation of our Constitution, return our rights of "Laws of Nature" to ourselves. The need to keep and bear arms during the formative years was tantamount to survival against the savage Indians and against a government that was trampling our "Laws of Nature." Nothing has changed. Today we need arms to protect ourselves against savage street thugs and the possibility of government out of control, a la, Waco, Ruby Ridge, etc., etc.
The 1st Amendment to the U.S. Constitution says: "Congress shall make no law...." This is an order of the people and by the people that expressly forbids the CONGRESS of the United States from passing any laws that prohibit or abridge those celebrated freedoms. It doesn't say that other bodies or organizations such as cities, states, bureaucracies can't restrict these liberties.
The 2nd Amendment places no such constraint on the CONGRESS. This amendment reiterates and codifies privileges and immunities -- "Laws of Nature" -- already in existence at the time the Constitution was drafted, i.e., "the right of the people to keep and bear arms shall not be infringed." The word SHALL means must or required while INFRINGED means violate, impair or trespass on the rights of others. This Amendment, because it makes no reference to CONGRESS, means not only CONGRESS, but a state, a city or any bureaucracy, cannot overrule, override, usurp or in any way restrict this guaranteed right.
During the formation of this country, when it was still very small, the greatest concern was a totalitarian and oppressive central government. However, by 1866, with the country's expansion and subsequent growth of the power and clout of the various states, many citizens came to fear their own states. This new fear resulted in the 14th Amendment, which reads in part: "NO STATE SHALL MAKE OR ENFORCE ANY LAW WHICH SHALL ABRIDGE THE PRIVILEGES OR IMMUNITIES OF THE CITIZENS OF THE UNITED STATES." The meaning is clear: If a citizen has a National privilege or immunity, then a state cannot take it away.
WE ARE A NATION OF CONSTITUTIONS NOT A NATION OF LAWS -- LAWS AND STATUTES ARE SUBSERVIENT TO CONSTITUTIONAL ARTICLES AND AMENDMENTS.
SOLUTIONS:
The most effective methods [open revolt aside] of re-establishing our rights are through our judicial and legislative systems. Using the courts, like any back door approach, is burdened with traps and pitfalls. Human nature, being a factor that cannot be legislated or affected by court order, can produce unintended consequences. The best example is the abuse of judicial power for the purpose of judicial power. In other words, judges abuse their powers to further promote their own powers such as bullying juries to conform to a judge's definition of the law. Or, convicting a person, not because the evidence is against him or he did in fact violate a bona fide law, but because what he did, flies in the face of public opinion [carrying a gun for self protection is but one example].
Other pitfalls include counting on higher courts [appeals and supreme courts] to overturn unconstitutional laws. The reasons are obvious. Higher court judges are paid by and represent the same employer as lower court jurists as well as the legislators who wrote the law under question. Additionally, judges, being human, are susceptible to common-man needs of self importance. In other words, judges have a need to find ways to ignore constitutional restraints in order to exhibit their "legal brilliance" to their contemporaries while at the same time wanting to conform to the Political Correctness du jour [PCDJ].
Judges, officiate in criminal matters for the sole reason to see that the trial is fair. They are referees or umpires whose duties, in a jury trial, lie in making sure the playing field is level -- not to pass judgement. In fact, the 6th Amendment clearly states, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury...." It doesn't say by a judge; it specifically declares a jury. When a judge "charges" a jury he is using his powerful position to instruct the jury to apply the law according to his description of the law. Nowhere in The Constitution is a judge empowered to tilt the playing field by inserting his opinion with a "charge" or "instruction" to the jury. The ONLY reference to who shall define and apply a law is found in the aforementioned 6th Amendment -- the jury!
Our forefather's realized that judges not only represent the government, but being human [as noted above], they carry their own prejudices. Because of this, the framers of our Constitution did not require judges to swear to tell the whole truth and nothing but the truth. In all criminal proceedings witnesses who are going to testify before a jury must swear, under penalty of perjury, to tell the whole truth. The judge is immune to this rule of law because he, like the prosecutor and defense attorneys are not expected to testify. Unfortunately, a practice has evolved where judges do testify in the form of their "instructions" or "charges" to the jury. It is during this "testimony" -- this propagation of their own power -- that the judge will NOT tell the whole truth. The whole truth being a juries right and power to nullify a law for being unconstitutional.
Jury Nullification is a way to overcome laws that are in conflict with either a state or the Federal Constitution. This method, as covered in Taking Charge -- Challenging Constitutionality of Gun Laws [Guns & Ammo Feb '98], makes use of the right and power of Jury Nullification. With this power juries can refuse to apply laws that they believe to be unconstitutional. Relying on this concept is not a guarantee, as nothing before a jury is a sure thing.
The importance of having a jury declare a law unconstitutional, rather than just voting not guilty, is that once a law has been found unconstitutional it sets a precedent that all others charged under the same law can reference.
Just for the sake of argument, lets say that the PCDJ pass Public Law X making it a crime to speak or write anything derogatory about any federal employee. Soon thereafter, your car is struck by a vehicle negligently operated by a BATF agent. Outraged that this boob had damaged your new BMW, you call him an incompetent jerk whereas he immediately arrests you for violation of Public Law X.
You're an honest person and do not deny that you made those comments. You place your faith in the fact that Public Law X is obviously in direct violation of the 1st Amendment to the U. S. Constitution. However, because the judge in your trial is cut from the same cloth as that of the BATF agent -- federal employees -- he denies your plea for summary judgement that Public Law X is unconstitutional. At the conclusion of your trial the judge "instructs" the jury that if they find that you did utter derogatory comments to a federal employee they, the jury, MUST find you guilty as charged. Of course, the jury has the right and power to nullify the law because it is in conflict with the Constitution. However, if the judge refuses to tell the jury that they have this right and your attorney is not allowed [see Taking Charge -- Challenging Constitutionality of Gun Laws, [Guns & Ammo Feb '98] then that leaves you down range in a shooting war -- and without a gun.
If we gun owners substitute fictitious Public Law X for any number of real anti-gun laws that are in direct conflict with our Constitution we get a picture of the dilemma we are in. Currently, just to mention a few, it is against the law to carry a firearm into many federal buildings such as court houses and post offices OR even within 1000' of a school -- buildings we, the people, own. There is no constitutional authority for any local, state or federal government body to restrict our right to bear arms in or on property we have a stake in -- taxpayer owned -- PUBLIC property.
The second method of reestablishing our rights, the legislative process, is very difficult especially if the desired changes are against the Political Correctness of the day. This method, in an entirely different manner than we've been accustomed to, will be dealt with at length in future columns.
WHAT WE CAN DO AS INDIVIDUALS:
* Learn about the FULLY INFORMED JURY ASSOCIATION [FIJA] by calling 1-800/TEL-JURY or writing to FIJA POB 59 HELMVILLE MT 59843 [Membership, including newsletter, is $15.00/year].
* If called for jury duty and the judge asks if you will comply with his instructions or follow the law as given by the trial court, consider replying:
"I agree to follow all instructions, laws, rules and statutes if these instructions, laws, rules, and statutes are not in conflict with this state or our Federal Constitution."
* Write letters to your local newspaper addressing the concepts of Jury Nullification [be careful in defining this concept so as not to perpetuate misuse or misunderstanding of Jury Nullification].
* Petition your elected officials to proclaim September 5, as Jury Rights Day [several states have already done so].
IF YOU FIND YOURSELF A DEFENDANT IN A FIREARM RELATED
CASE YOU MIGHT CONSIDER:
* Demanding a jury trial;
* Taking the stand to testify yourself. Once on the stand you might be able to relate to the jury the reasons why you consider the law under which you are charged is unconstitutional and how the jury can nullify this law.
* Subpoenaing expert witnesses on the subject of Jury Nullification to testify as to the constitutionality of the law under which you are charged and to present to the jury their rights and powers including the Jury Nullification concept.
* Representing yourself during the summation portion of your trial to enlighten your jury on their rights and powers. If you do decide to take this course, two major obstacles might have to be overcome before you can address the jury, pro se [representing yourself]. First, you might have to present evidence that you are competent to present your case. In other words, can you show the court that you are intelligent and articulate enough to discuss the case. Second, you might face a challenge by either the judge or prosecutor about your introducing the concept of Jury Nullification. In answer to this challenge your approach might be to cite relevant case law and assure the judge that you are not going to "fly in the face of the court." What you are going to do is ask the jury to find you not guilty because the law under which you are charged is unconstitutional.
If you can convince the Judge that your presentation to the jury will not be inflammatory or insulting to the court, you might be allowed to plead your case to the jury. Should the judge refuse your request to conduct the summation, pro se, this might be grounds for appeal -- which, of course, will only be heard by other judges. If you are refused permission to conduct the summation pro se, adamantly and boisterously objecting might produce contempt charges against you. A contempt of court citation could be either a tactical advantage or disadvantage.
CONCLUSION:
Before we reach the end of this era of diminishing liberty, we the patriotically authentic, need to take the reins from the Politically Correct Du Jour. We Second Amendment supporters, as our gun bearing forefathers did, must reverse the trend of disappearing freedoms. If we fail to reinstate our inalienable rights to keep and bear arms, then like timed demolition charges, all of the other rights and immunities shall also fall.
In this and the first of this series the theory of Jury Nullification, as a means of using the courts to correct the pseudo politically correct, was espoused. Subsequent articles will lay out a Tri-point program for returning lost freedoms to the patriotically authentic. Point-Two, next issue: INSIDER POWER CONTROL.
Recently, a Colorado case [Colorado v. Laura J. Kriho 96CR91 Div 1] received publicity because a juror was convicted of Contempt of Court. This is a rare case where the trial judge stepped into the esoteric realm of a jury room. In this case a juror had tried to convince her fellow jury members to throw out the case they heard on grounds that the law for which the defendant was charged was a bad law -- there was no evidence that she made any arguments purporting to show that the subject law was unconstitutional.
The way to change a "bad" law is via the legislature. The way to change an UNCONSTITUTIONAL LAW is through either the legislature OR the JURY NULLIFICATION method.
Kriho was punished, not for voting to find the defendant not guilty or for encouraging her fellow jury members to also vote not guilty, but for deliberately withholding information during jury selection. Ms. Kriho failed to tell the court she had been arrested for a drug offense and that she harbored strong views on the enforcement of drug laws. Because of this, according to the court, "she obstructed the process of selecting a fair and impartial jury." The state has the right to know what notions are held by a prospective juror. This is no different than a juror, whose child had been killed by a crazed drug user, harboring beliefs that all drug users should be hanged. Kriho's contempt conviction is very important to all Americans because it raises the question of how presumptuous a judge and prosecutor can be during the jury selection process.
JURY NULLIFICATION IS THE RIGHT AND POWER OF A JURY TO DECLARE A LAW NULLIFIED OR VOID BECAUSE THE LAW DOES NOT CONFORM TO OR VIOLATES A STATE OR THE FEDERAL CONSTITUTION -- IT IS NOT AN EXCUSE FOR A JUROR TO VOTE NOT GUILTY BECAUSE HE FINDS THE LAW UNFAIR, BAD OR UNPOPULAR.
Ms. Kriho's conviction of Contempt of Court had nothing to do with Jury Nullification. However, since the term, Jury Nullification, was mentioned her conviction might cause future jurors to fear making use of their rights and powers of Jury Nullification.
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If you are charged [or know someone who is charged] with a firearm related **** and possible unconstitutional crime **** GUNS & AMMO magazine might be interested in helping with financial support and/or consultation.
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BLACK IS BLACK
Unless you're Comprendo-Challenged
Published in Guns & Ammo: March, 2002
© Chuck Klein, 2002
REGULAR PEOPLE:
It seems most members of the judiciary have a difficult time reading and understanding certain portions of The Constitution of The United States. Although these judges are all highly degreed they have historically ignored and violated select constitutional articles and amendments. It's not entirely their fault inasmuch as their condition, comprendo-challenged, is a result of being brain-washed by pseudo elitist instructors in incestuous academies. The Constitution, OUR Constitution, was written by and for laymen - regular people - who knew what they wanted to say and then said it in plain, common sense terms and words. Cum laude certifications or any kind of degrees, except maybe a high school diploma, are not needed to read, understand and apply any of the articles and amendments.
Article number six of OUR Constitution reads, in part: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof...shall be the supreme Law of the Land." There's nothing uncomplicated or confusing here. In plain, simple, common sense words - all laws must be written and enforced in Pursuance to (in accordance with) The Constitution, which is the supreme (ultimate, final, highest authority) law. Nothing, absolutely nothing, can overrule these "supreme laws" - not the President, the Supreme Court, the FBI, BATF, etc. The means of effecting changes in The Constitution can only be done by amendment. The Supreme Court is not the supreme law of the land and it does not have the power to change the meaning of any portion of the Constitution itself.
WE ARE NOT A NATION OF LAWS - WE ARE A NATION OF CONSTITUTIONS. LAWS, STATUTES, COURT DECREES, PRESIDENTIAL EDICTS ARE SUBSERVIENT TO CONSTITUTIONS.
To enforce these "supreme laws", to make certain government officials of The United States follow these guaranteed rights, the 6th Article goes on to say: "and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Again, simple words demand that judges are obligated to uphold the Constitution even if it means going against any other law or any "thing" in any state's constitution.
PERVERSIONS:
In terms that even the comprendo-challenged should be able to understand: The Constitution stands for the fact that BLACK is BLACK and demands that all must comply with this rule. The legislature, in an effort to show that they are doing something to earn their salaries, perks and pensions, sometimes write laws saying BLACK is DARK GREY. This tainting often takes the form of exclusions, prohibitions, taxes, license fees, special interests or other hoops and high wires. Police officers, whose official qualifications do not include constitutional training, sometimes feel like they are caught between an armed robber and a murderer. These common sense enforcers of the law can usually sense that DARK GREY is not BLACK, but they (wrongly) believe their hands are tied in such matters. It is for this reason officers will blindly enforce obviously unconstitutional laws, such as any law that "infringes" the RKBA.
Trial judges, falsely believing that they are the only ones qualified to interpret the law ofttimes instruct juries (in violation of the 6th Amendment) that DARK GRAY is whatever color the judge says it is. Should the case be appealed to higher courts, where decisions have been made by highly comprendo-challenged judges, BLACK has been additionally defined to mean GRAY, LIGHT GREY, BLUE GREY or even a color that doesn't exist.
The wisdom of ARTICLE VI continues: "The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution...." In very plain and understandable words, OUR state and federal Senators, Representatives, executive and judicial officers have taken an oath to support us should anyone or any agency attempt to violate our constitutionally granted rights (when was the last time you witnessed an elected official order the FBI or any other agency not to violate our RKBA?).
NOT ONLY ARE WE GUARANTEED THESE RIGHTS, BUT THOSE EMPOWERED TO ENFORCE THE CONSTITUTION ARE REQUIRED TO BACK US UP!
The Second Amendment to the U.S. Constitution, in unambiguous language, states: "...the right of the people to keep and bear arms shall not be infringed." This is pretty much BLACK is BLACK, i.e., all people have the license, power, prerogative and privilege to own and carry weapons. There is no gray area there - The people (you and me) can pack a gun!
Yeah, I know, it doesn't say we can carry concealed. Therefore the states, in what they believe to be a benevolent act, allow us to apply for a permit to carry concealed. Again, this is non-adherence to the black is black requirements of the Constitution. As a result violations of the Second Amendment occurs because permits are an infringement. Equally repugnant is the violation of the Ninth Amendment's freedom to protect one's life in the manner in which one believes is best.
The U.S. Constitution was written and designed as a system of checks and balances to control government - not to control us. These checks are now out of balance. Our judiciary, in addition to being the resolver of conflicts, has, in effect, unilaterally established an additional function: Legislation by Adjudication. Here, comprendo-challenged judges "make" laws by adjudicating BLACK is not BLACK.
Bill Clinton was the epitome of comprendo-challenged when he occupied the office of President. He loved to tender the notion that we had a "living, breathing Constitution" that could be bent or altered to mean anything those in power wanted it to mean. He then proved his point by issuing executive orders; the most infamous of which was the ban on importation of certain firearms. Our Constitution is what it is; the rule of law by which we conduct, foreign, domestic, political, personal, financial - any and all of our business. It is neither "Living" nor "breathing", alive nor dead, nor anything other than the law of the land.
Acts of perverting plain words and terms to fit the PC du jour is the cause of most all of the dissension in America today. The Executive, Legislative and Judiciary Branches have, many times over, exceeded their collective and individual authority by systematically (intentionally or unintentionally) violating the black is black meaning of the articles and amendments to The Constitution of The United States of America.
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© Chuck Klein 2002/2008
In my 2nd Amendment column (June 2002 issue of GUNS & AMMO Magazine), I wrote a proposal to amend our Constitution. It stirred a lot of controversy, both pro and con. Below is the amended version that includes suggestions tendered by G&A readers and others in the trade. Below that is the original article.
PREFACE:
I realize this may not be perfect and many of you may strongly disagree with my position. I site the old and still true observation of Edmund Burke: "All that is necessary for evil to triumph is for good men to do nothing" Well, I believe I am a good man, and being a writer, this is what I'm doing.
It is now clear, that contrary to the Heller case, the antis are not going to be stand-up Americans by accepting the ruling of the highest court in the land. As evidenced by report after report in the pages of various "gun magazines," that courts, judges, governmental agencies and anti-rights groups are still ignoring, twisting and violating the law of the land.
Though we, for the most part, have won these challenges, it is a heavy toll and there is always the risk of losses especially if retiring justices are replaced by an anti-gun President.
The Second Amendment, as noted by Heller, is NOT an absolute (if it were, 10 year olds would be allowed to pack a Uzi to class and prison inmates would have the RKBA also). Therefore, if it is not an absolute, then "reasonable" controls are legal. In other words we will always be fighting in courts for tomorrow's definitions of reasonable and forever on the defensive.
Our best course of action should be to take the offensive - to champion for a new Amendment to the Constitution. This Proposed Amendment does NOT repeal the 2nd Amendment - it supplements, fortifies and enhances it. By taking the offense we will force the opposition to expend their resources on defending against this new Amendment rather than them continuing on the offense by proposing new controls on us. Finally, by being first (rather than reacting to an antis "new amendment"), we will be initiating a de facto hold on all future laws, statutes, executive orders, etc. - at least until our proposal is accepted or rejected according to the Constitution - and that could take a decade - or so.
PROPOSED 28th AMENDMENT
© Chuck Klein 2008
SECTION I.
ANY CITIZEN OF THE UNITED STATES, OVER THE AGE OF 18, WHO HAS NOT BEEN DISHONORABLY DISCHARGED FROM ANY BRANCH OF U.S. MILITARY SERVICE OR WHO IS NOT UNDER INDICTMENT FOR, CONVICTED OF, OR WHILE IN THE ACT OF, COMMITTING ANY FELONY CRIME OF VIOLENCE; OR FELONY DISTRIBUTION, OR TRAFFICKING IN, ANY ILLEGAL DRUG OF ABUSE; OR HAS NOT BEEN ADJUDICATED AS A CHRONIC ALCOHOLIC, DRUG DEPENDENT OR MENTAL INCOMPETENT; OR IS NOT UNDER THE INFLUENCE OF ALCOHOL OR ANY FEDERALLY CONTROLLED NARCOTIC SUBSTANCE HAS THE INHERENT RIGHT TO KEEP AND BEAR ARMS ANYWHERE THIS INSTRUMENT HAS JURISDICTION.
INTENTIONS OF THE FRAMER:
SECTION I:
Any person who is a citizen of the United States (an inducement for those living here as foreign aliens) and does not fall under one or more of the disabilities has the right to own and carry guns. The section does not grant the right, it only recognizes this inherent and intrinsic right to keep and bear arms (a la the 2nd). The right extends to any physical location under the control of the U.S. Constitution. The Framer is not contending that carrying a concealed or unconcealed firearm is an absolute right anymore than free speech allows one to yell fire in a crowded building when there is no fire. However, the restrictions on bearing and keeping arms shall be limited to those enumerated in this amendment.
SECTION 2:
THE BEARING OF ARMS IS PROHIBITED, WITHIN AN ENCLOSURE, WHERE NOTIFICATION IS MADE RESTRICTING THE BEARING OF ARMS, SEARCH PROVISIONS ARE OPERATIONAL AND SAFE AND CONVENIENT PROVISION IS MADE TO SECURE AND RETRIEVE ARMS CARRIED TO THE INGRESS/EGRESS POINT OF ENCLOSURE.
INTENTIONS OF THE FRAMER:
SECTION 2:
Any public or private entity has the option of forbidding the carrying of arms into or onto its enclosure (building, fenced-in area) as long as said entity posts a notice, operates a metal detector or other means of detection and provides for the arms carrier to safely and conveniently store/retrieve his arms. This way, military bases, court houses, police stations and department stores, etc., that don't want persons to be armed within their enclosures, must establish a 'coat check' for guns and have metal detectors in operation.
SECTION 3:
ARMS MEANS ANY RIFLED BARRELED, BREECH LOADING DEVICE WEIGHING LESS THAN FIFTEEN POUNDS, UNLOADED, AND CAPABLE OF DISCHARGING BY THE ACTION OF AN EXPLOSIVE OR COMBUSTIBLE PROPELLANT, A NON-EXPLODING PROJECTILE OR PROJECTILES OF WHICH THE PROJECTILE[S] IS [ARE] NOT GREATER THAN .525 INCH IN DIAMETER; OR ANY NON-RIFLED BARRELED, BREECH LOADING DEVICE WITH A BORE DIAMETER NOT GREATER THAN .780 INCHES; BEARING OF ARMS MEANS TO CARRY, EITHER OPENLY OR CONCEALED; KEEPING ARMS MEANS OWNERSHIP AND HAVING CONTROL OF ARMS.
INTENTIONS OF THE FRAMER:
SECTION 3:
Most non-gun and many gun owners would feel uncomfortable with their neighbor hauling around a bazooka or other mega-destructive device. Barrel and stock lengths, rifle/handgun calibers (up to .50), shotguns up to 10 ga. and fully automatic arms are not restricted as long as the arm doesn't weigh more than 15 pounds - empty. This section does not preclude local governments from enacting and enforcing 'activity laws' such as pointing firearms (assault) or inducing panic by shooting in crowded public arenas. Keeping arms is not only protected, but is carries with it an obligation to be sure these weapons don't fall into the wrong hands, i.e., persons prohibited under SECTION I.
SECTION 4:
EACH TERRITORY OR STATE OF THE UNITED STATES MAY LICENSE/TEST PERSONS WHO WISH TO BEAR ARMS IN PUBLIC OR PURCHASE ARMS; FEES AND COMPLEXITY OF TESTING FOR SUCH LICENSING SHALL NOT EXCEED THAT WHICH THE LICENSING STATE OR TERRITORY ESTABLISHES FOR A MOTOR VEHICLE OPERATOR'S LICENSE.
INTENTIONS OF THE FRAMER:
SECTION 4:
Some may object to allowing states to license something one has a constitutional right to do. The state, however, also has rights, such as its need to know who is a citizen - a person entitled to own and carry deadly weapons. Requiring a license to purchase or carry arms, either openly or concealed, greatly enhances the likelihood for ratification. States might be more inclined to ratify the 28th AMENDMENT if they won't lose the income now generated from CCF or hunting fees. More importantly, and especially since the terrorist attack of September 11, 2001, anyone wanting to purchase or carry instruments of lethal force should be required to prove they are decent, law-abiding, American citizens. Qualifying for and possessing a "permit" card is a mark of citizenship - it is only available to those who are not drunks, mental patients or criminals. Establishing just who is and who is not a citizen when it comes to those who are part of America's First Line of Defense is paramount to a secure country.
Since SECTION I guarantees the right to keep and bear arms, all permits must be on a 'shall issue' basis. The tests and the procedure for securing the license cannot be any more complex than what a state requires for its motor vehicle operator's license, i.e., prove who you are, study a pamphlet and take tests (can't have those who can't comprehend use of lethal force laws packing heat).
SECTION 5:
NO STATE, LOCAL OR FEDERAL GOVERNMENT EMPLOYEE OR AGENCY SHALL MAINTAIN A REGISTRY OF ARMS.
INTENTIONS OF THE FRAMER:
SECTION 5:
Registration of firearms is forbidden by any government person or government agency. This would not preclude manufacturers and gun dealers from keeping records of the original purchaser in case notification is needed for reasons such as recall or safety notices - as is already the law.
SECTION 6:
THIS AMENDMENT VOIDS ALL PREVIOUS FEDERAL, STATE AND LOCAL STATUTES, LAWS, COURT DECREES, EXECUTIVE ORDERS AND LEGISLATIVE ACTS THAT PERTAIN TO THE KEEPING AND BEARING OF ARMS, EXCEPT AS APPLIED TO ARMS MANUFACTURERS AND LICENSED ARMS DEALERS IN FORCE AT THE TIME THIS AMENDMENT IS ENACTED; AND NO FUTURE RESTRICTIONS ON THE KEEPING AND BEARING OF ARMS SHALL BE PERMITTED EXCEPT BY AMENDMENT TO THIS CONSTITUTION.
INTENTIONS OF THE FRAMER:
SECTION 6:
This section is to make it clear that this new amendment has superseded all other current or future laws, statutes and executive orders and court rulings - federal, state or local! Arms laws pertaining to gun manufacturers and dealers, on the books at the ratification of this amendment, except those laws that are in conflict with this AMENDEMENT, remain in force. There is no need for other controls on firearms as any such would be in violation of this amendment.
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TIME FOR A 28th AMENDMENT
Published in Guns & Ammo Magazine: June 2002
© Chuck Klein, 2002
The recent Emerson Decision from the 5th District Court of Appeals acknowledged what we’ve known all along: That people have the individual right to keep and bear arms (U.S. v. Timothy Joe Emerson, 99-10331, 16 October 2001,
The court confused the issue by reserving the government’s power to restrict certain aspects, such as regulating the bearing of concealed arms and other possible infringements. Therefore the model of bearing - as well as the type of arms that we can keep - is still subject to subjective government control.
If any one word could emulate the controversy over the Second Amendment, it has to be “semantics” - the meaning of the words. The words “arms” and “people” mean different things to different persons. To some on the far left, the only "people" who should be allowed to "keep and bear arms" would be active-duty military personnel and police. On the other hand, the extreme right has touted that "people" means any and all persons. Militia extremists are convinced "arms" means anything in ! use by the military, including tanks, bombs and rockets. The opposite camp firmly believes it only refers to weapons in use at the time of the Constitutions ratification- c.1790.
The word "People" certainly cannot refer, for pragmatic reasons, to everybody. If all “people” could “keep and bear arms," “then we'd have to allow prison inmates to carry concealed and permit grade schoolers to swagger across the playground packing a .25 Baby Browning. That's not realistic or practical-any more than restricting "arms" exclusively to that class of "people" who have the power of arrest.
Perhaps the time is right to enact a new constitutional amendment to clear up the confusion and uncertainty created by the courts. So as not to fall into a trap of ambiguity again, the wording to this new amendment, the 28th Amendment, must be sure, certain and unequivocal.
Some might think it rather presumptuous that a mere "gunwriter" could draft something so significant as a constitutional amendment. However, since the original Constitution was written by amateurs, and since we, just regular law abiding laymen, are the ones most affected by the new amendment, it stands to reason that one of us should be trusted with its authorship.
Therefore I propose this 28th Amendment to the Constitution of the United States of America...
AMENDMENT TWENTY-EIGHT
SECTION 1:
Any citizen of the United States over the age of 21, who is not under indictment for or has not been convicted of a felony crime of violence or felony illegal distribution or trafficking in any drug of abuse; or has not been adjudicated as a chronic alcoholic, drug dependent or mental incompetent mental incompetent; or is not under the influence of alcohol or any federally controlled substance, has the right to keep and bear arms anywhere this instrument has jurisdiction.
Intention of the framer: Any person who is a citizen of the United States (an inducement for those living here as foreign aliens) and does not fall under one or more of the disabilities, has the right to own and carry guns. This section does not grant the right, it only recognizes this inherent and intrinsic right to keep and bear arms. The right extends to any physical location under the control of the United States Constitution.
SECTION 2:
The bearing of arms is prohibited within an enclosure where notification is made restricting the bearing of arms and safe provision is made to secure such arms.
Intention of the framer: Any public or private entity.has the option of forbidding the carrying of arms into or onto its enclosure (building, fenced-in area) as long as said entity posts a notice and provides for the arms carrier to safely store his arms. This way, courthouses, police stations and department stores, etc., not wishing persons to be armed within their enclosures can establish a "coat check" for guns.
SECTION 3:
"Arms" means any breech loading device weighing less than fifteen pounds, unloaded, and capable of discharging by the action of an explosive or combustible propellant, a non-exploding projectile or projectiles of which the projectile [s] is [are] not greater than .505 inches in diameter; "bearing"of arms means to carry, either openly or concealed; "keeping" arms means possessing, collecting or having control of arms.
Intention of the framer: Most non-gun owners and many gun owners would feel uncomfortable with their neighbor hauling around a bazooka or other mega-destructive device. Barrel and stock lengths, calibers (up to .50) and fully automatic arms are not restricted as long as such arms do not weigh more than 15 pounds unloaded. This section does not preclude local governments from enacting and enforcing "activity laws" such as pointing firearms (assault) or including panic by openly carrying arms into crowded public arenas.
SECTION 4:
Each Territory or State of the United States may license/test persons who wish to bear arms in public; fees and complexity of testingfor such licensing shall not exceed that which the licensing State or Territory establishes for a motor vehicle operators license.
Intention of the framer: By allowing licensing and carrying of arms either openly or concealed, we greatly enhance our chances of ratification while at the same time establishing just who is and who is not a citizen. States might be more inclined to ratify Amendment Twenty-Eight if they believed income could be generated from fees (or not lose the fees they now receive for CCW permits or hunting licenses). Since Section 1 guarantees the right to keep and bear arms, all permits must be on a "shall issue" basis. The tests and the procedure for securing the license cannot be any more complex than what a State requires for its motor vehicle operator's license study a pamphlet, take a written test and demonstrate proficiency. This section only applies to bearing arms in public - it has no control on those who collect or bear arms on private property.
SECTION 5:
This 28th Amendment voids all previous federal, state and local statutes, laws, court decrees, executive orders and legislative acts that pertain to the keeping and bearing of arms.
Intention of the framer: this section is to make it clear that this new amendment has superseded all other laws, statutes and executive orders and court rulings - federal, state or local.
GUNS & AMMO EDITOR'S NOTE: The opinions expressed here are not necessarily those of the editorial staff of Guns & Ammo. However we felt that author Chuck Klein has offered some very thought-provoking material - which we pay him to do-
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© Chuck Klein, 2002
Four score and 140+ years has witnessed The Rise of the American Empire, but the world has taken "LITTLE NOTE" nor "HAS LONG REMEMBERED" that which we have always know: America has its share of everyday heroes. These proud models of citizenship are our first and last lines of defense, and because of their honor and strength, "this nation shall not perish from the Earth ".
OH BEAUTIFUL FOR SPACIOUS SKIES:
This canopy, so immense, it expands as high as the heavens and as broad as needed, not unlike a blanket of freedom, to cover Americans wherever they might be.
FOR AMBER WAVES OF GRAIN:
Gold nuggets of life sustaining sustenance on whose shoulders all of those who seek the protection of the spacious skies depend.
FOR PURPLE MOUNTAIN MAJESTIES:
Forging straight up from the great plains of gilded grain, like a church spire paying homage to the heavens, these rugged resplendent pinnacles symbolize the strength and tenacity of the spacious sky people.
ABOVE THE FRUITED PLAIN:
Scattered among the violet mountains and meadows of wheat are the bounteous production yards of the fruits of American ingenuity and manufacturing. In the history of the world these plains and majestic plateaus have yielded the highest standards of excellence and an excellent people.
AMERICA - AMERICA:
Saying it once isn't enough. To be an American is to be strong and fair, and honest and wise, and humanistic and realistic, and all the other virtuous attributes of those under the protection of the spacious skies.
GOD SHED HIS GRACE ON THEE:
The Lord truly has blessed us with his benevolence, a covenant with all Americans, to do right by thee and thou and you and me.
AND CROWN THY GOOD WITH BROTHERHOOD:As we keep the compact with God so shall he continue to bestow the munificence that comes from loving and understanding, and helping our brothers and sisters.
FROM SEA TO SHINING SEA:
Not just from Maine to Hawaii or Alaska to Florida, but to wherever those whose roots stem from the fruited plains, the fields of grain or the majestic mountains. For it is the duty of all Americans, an obligation that evolves from a pact with God, to stay the course and expand the spacious skies of brotherhood and freedom.
For we the people, September 11 shall live as a day of awakening. If we are to survive for another four score, 146 years, nine nonthss and 11 days, we must again mutually pledge to each other our lives, our fourtunes and our sacred honor.
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Published in Guns & Ammo Magazine: January 2003.
© Chuck Klein, 2003
There are far more organizations and associations on the side of gun rights as there are opposed. These pro-gunners range from the three million member National Rifle Association to such small and unique groups as the Jews for the Preservation of Firearms Ownership. The following is a short critique of four of the most effective and influential organizations.
NRA: Though it's been around for well over 100 years, the National Rifle Association (nra.org) has only more recently become active in fighting for our rights. Due to its membership base and very well-connected lobbyist, its clout at the legislative level is legendary. Its greatest attribute might be that each member receives his or her choice of one of the industries top-notch, monthly magazines: "The American Rifleman," "American Hunter" or "American's First Freedom."
The NRA's biggest problem might stem from trying to be all things to all members. This difficulty of keeping its agenda in tune with that of its member's is inherent to all large organizations. Of course, you can't please everyone, but the NRA has in some cases been a little too eager to compromise principles and thus have embarrassed itself and outraged many staunch member/supporters. Their original goals of civilian marksmanship and safety are still their strongest suit. The Eddie Eagle program of educating children is unparalleled as is their civilain and police instructor certifications. On the other hand, their Institute for Legislative Action is a classic bureaucracy. This legal arm of the NRA is difficult to contact and their creditability is tainted a few petty and vindictive actions.
SAF: Probably the most active and strongest fighter of basic gun rights is the Second Amendment Foundation (saf.org). This small (low number of employees - low overhead) dedicated group of gun rights experts is one of the largest (high number of successful court/legislative victories) when it comes to accessible staffed experts. Their constantly updated web site yields detailed information and links to many national and state issues including links to actual court documents in either TIF or PDF format. In addition to funding the annual Gun Rights Conference, which is open to all and free of charge, they publish GUNWEEK MAGAZINE, the leading voice of current gun issues.
Their biggest problem is indicative of any progressive organization: growing pains. As they struggle to evolve by involving themselves in the never-ending attacks on our rights, their membership ranks grow and grow. Unencumbered by non-gun-rights related activities the SAF is able to react rapidly to changing times, legislatures and court challenges. They exist on donations from us (the rank and file gun owners) and sales of books from one of the industries most comprehensive on-line gun-book stores.
GOA: The GUN OWNERS OF AMERICA's (gunowners.org) most helpful contribution to "the cause" is their web site listing of every Federal Senator and Representative. The list includes contact information and a rating of each official's stand on firearm matters. In addition, there is a link to a viewer friendly page showing the status of all gun related bills, current, pending and past with an indication as to whether the GOA supported or opposed the bill. This is the place to go if you need to know up-to-the-hour standing on proposed federal laws. The GOA also offers a detailed analysis of forth-coming federal bills and a Hot-Bill-Alert requesting gun owner action.
On the state level, and one of their most helpful attributes, is the massive opinion poll mailing they make to each state's legislative candidates. The tabulated results of this poll is then mailed to each member - a very expensive program, but worth every penny to the voter. For many of us single-issue voters the GOA poll is most helpful in determining which candidates are pro or anti-gun. Finally, there is a "State Alerts" page. Here the GOA carries a five year history of links to legislative acts and attacks. On the downside, they don't publish a member magazine.
JPFO: Jews for the Preservation for Firearms Ownership (jpfo.org), though small in members, is noted for its innovative and aggressive approaches to securing our gun rights. And, no, you don't have to be Jewish to be a member. Founder/Executive Director, Aaron Zelman, has authored many books challenging the unchallenged. His 1993 book, "GUN CONTROL, Gateway to Tyranny" successfully compared the Nazi Weapons Laws of 1938 to our U.S. Gun Control Act of 1968. This oft-cited research has been used in many legal confrontations. The JPFO also promotes BILL of RIGHTS DAY (all of the Bill of Rights for all citizens) and publishes "The Bill of Rights Sentinel" and a series of "Gran'pa Jack" booklets aimed at the youth of America.
Some of their past over-zealous and confrontational tactics have included radio talk shows and an in-your-face billboard campaign. Inasmuch as these hard-core, albeit convincing, approaches are technically and historically correct, their effectiveness is dampened if the moderates of society (those voters who are neither pro- or anti-gun) are turned off by them.
SUMMARY: In addition to the above four major pro-gun organizations, there are a raft of other national, state and local specialized and general groups including many for-profit corporations bent on protecting gun rights. There is even one major political party, the Libertarian Party (lp.org), committed to America's heritage of freedom. They believe in Individual liberty and personal responsibility; a free market economy and a foreign policy of non-intervention - how refreshing!
The GOA, and others, have links (including: chuckklein.com and gunsandammomag.com) to hundreds of gun-rights related sites. Today, almost everything is accessible on the internet. If you're not yet computer savvy, you might want to visit your local library. They can show you how (in minutes) to access web sites, use search engines and "log on" - all for free and with their computers. Once "on-line," you can send e-mail messages to many of your elected officials, newspapers, pro and anti-gun organizations or join chat rooms/message boards for discussions of interest.
The key to protecting our rights, both in the court room and in federal and state legislatures, is through a unified and strong front. We must all be on the same page. That is not to say we don't and won't have disagreements, but we should keep our conflicts civilized and intellectual - and out of the main stream press.
It is imperative that each of us be "card carrying" members of at least two pro-gun rights organizations. The importance is not so much as to financially support these organizations, but more to make sure your association's leadership doesn't stray from our goals and compromise away our rights. Join a second or third pro-rights organization today or gift a friend and family member with a membership.
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Published in Guns & Ammo Magazine: April 2003.
© Chuck Klein, 2003
The Second Amendment clause, "The right of the people," indicates that the framers were acknowledging a right rather than granting a right. Therefore, this right "to keep and bear arms" (RKBA) is an inherent and intrinsic right that predates the Constitution. A preexisting right cannot ever be malum prohibitum - wrong because legislatures, courts or political correctness says it's wrong.
Regardless of this legal fact, our detractors will be gearing up to challenge the Emerson decision which confirmed that the Second Amendment is not only a right, but an individual right and not a collective right. The anti-gunners might have to finally admit to this, but they will not roll over or curtail their attacks on us. Their next assault might be to the effect that, though the RKBA is an individual right, it is not absolute. They will contend that even a mandate is not absolute and thus is subject to restrictions.THE BEST OF CHUCK KLEIN
Contrary to what some over zealous pro-gunners want to believe, the antis are correct inasmuch as the RKBA is not an absolute. If it was, we would have to allow little children and prison inmates to keep and bear arms. Therefore, some limits must be acceptable. But limits do not mean anything the legislature/courts want it to be. Bearing arms is not an absolute right under all conditions anymore than free speech allows one to yell fire in a crowded building when there is no fire. The constitutional right to bear arms does have limits, but these confines are only limited to two factors: Citizenship and Other's Rights.
"The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding." Justice Louis Brandeis, 1927."
CITIZENSHIP:
At the time of the Constitution's inception the framers, all "men" in a "man's world," clearly gave little thought to anyone other than the man as the defender of family, property or country. Whereas in Eighteenth-Century England, only the landed rich, were empowered to defend honor and country. This concept of all men being full "citizens" and having the right, empowerment and obligation to self preservation was unique to America.
A citizen, circa 1785, was considered to be any white, American, male over the age of 21 and not a felon. The idea of civilian gun controls was unconscionable. It is was also inconceivable that a Thomas Jefferson or a James Madison would refuse to take a musket away from a drunk, a child or someone conspicuously deranged. Had one been able to ask these learned, most-sacred-document framers of the conflict of such a restrictive action; they most likely would have replied with words to the effect that the drunk or mental incompetent were, at least temporarily, not citizens. A child was, of course, not a man and a felon had forsaken his citizenship.
With the ratification of the 13th, 14th and 19th Amendments all of-age Americans were recognized as full, ruling-class citizens. Arms possession was, AND STILL IS, the signature of being a citizen - not a subject to some monarchy and most assuredly not mentally inept, a child, a felon, or a substance abuser.
OTHER'S RIGHTS:
Violating the rights of others is cause to restrict gun rights. Allowing certain persons, such as children, felons, drunks, etc., to possess firearms most assuredly creates a substantial risk of loss of someone's life or liberty - just as permitting suburbanites to mass weapons of mass destruction such as bombs and missiles. However, restricting the RIGHT of a law- abiding, bona fide citizen from carrying a firearm that is concealed from public view where it can not induce panic or be available to a snatch-and-grab thief, does not present a substantial risk of damage to anyone. Likewise, machine guns, assault rifles, or short-barreled shotguns, while in the possession of law-abiding citizens, are of no danger to others.
Constitutional rights are only such when they don't infringe on the constitutional rights of others. One's right to swing his fist ends where the other person's nose begins. Of course, if one keeps his fist concealed in his pocket he is violating no ones rights. On the same token, if a law-abiding citizen goes about his legal business with a firearm concealed in his pocket he is no more infringing the rights of any other person than the theater-goer who keeps the word "fire" concealed in his mouth.
Some citizens might wish to exercise their right to the "pursuit of happiness" by not wanting to be in the presence of guns. On their own property, not accessible to the public, they can do as they please. However, where public property is involved such as court houses, police stations and legislatures guns can be restricted by instituting the use of metal detectors and storage boxes that the carrier can store his/her gun until he/she leaves that secure area.
But what about the reasonableness factor? Other "rights" such as those found in the Third, Fourth and Eight Amendments are subject to this doctrine of reasonableness - why not the Second? Our enemies might argue that, under the reasonableness doctrine, it is reasonable to ban certain types of arms or exclude bearing of arms into specified locations without incorporating metal detectors/lock boxes.
Unlike other Articles and Amendments there is no such provision for "reasonableness" in the Second Amendment. Discretion is not part of the right to bear arms. In other portions of our Constitution we see the following discretionary wording:
Article I, Section 4: "Each house may determine the rules...."
Amendment III: "...but in a manner prescribed by law."
Amendment IV: "...against unreasonable searches...upon probable cause."
Amendment VIII: "Excessive bail....nor excessive fines...nor unusual punishments"
If the framers of the Constitution had intended for the bearing of arms to be anything other than what it says, they would have included in the Second Amendment subjective words or terms such as "reasonable," "excessive," "prescribed by law," "upon probable cause," "unusual," or "may".
Reading discretionary or reasonableness provisions into the Second Amendment of our Bill of Rights is no different than reading the First Amendment to say: "Congress shall make no UNREASONABLE law respecting an establishment of religion..." If the legislature or the courts are permitted to insert reasonableness into the Second Amendment, what's to prevent them from saying a national church or attending church only on Tuesdays is not unreasonable. Not in America, not yet anyway!
SUMMARY:
The Second Amendment's right to bear arms is not an absolute - but restrictive conveyances can only be based on citizenship and the rule of other's rights. In other words, if you are not precluded from owning a gun and your exercising of this right does not infringe on anyone else's right, you can bear any type of arm anywhere you wish.