Friday, July 16, 2010

The Federal Firearms Act, et al. is Unconstitutional and here’s why

I have poured over many cases that have dealt with the Due Process clause. While the judges may have their own reasons for rejecting their claims, but in all the cases I have covered so far, I feel none of the claimants have quite hit the nail on the head when they brought this issue up. The US Constitution clearly states the bearing of arm is clearly a right. Any restriction of that right is clearly a liberty and property interest, thus covered under the Due Process clause by its statement of “nor be deprived of life, liberty, or property, without due process of law;”

In BOARD OF REGENTS v. ROTH, 408 U.S. 564 (1972), the Supreme Court stated,

“Liberty" and "property" are broad and majestic terms. They are among the
"[g]reat [constitutional] concepts . . . purposely left to gather meaning from
experience. . . . [T]hey relate to the whole domain of social and economic fact,
and the statesmen who founded this Nation knew too well that only a stagnant
society remains unchanged." National Ins. Co. v. Tidewater Co., 337 U.S. 582,
646 (Frankfurter, J., dissenting). For that reason, the Court has fully and
finally rejected the wooden distinction between "rights" and "privileges" that
once seemed to govern the applicability of procedural due process rights. The
Court has also made clear that the property interests protected by procedural
due process extend well beyond actual ownership of real estate, chattels, or
money. By the same token, the Court has required due process protection for
deprivations of liberty beyond the sort of formal constraints imposed by the
criminal process.”
So while getting due process on a separate and unrelated issue, a different liberty is suddenly violated and stripped away after the fact by a legislative action, not due process as required. In none of these cases under “violating” the Federal Firearms Act, did anyone get due process of law, as required by Amendment 5 when a liberty interest is deprived.

By the wording of Amendment 5, is it clear the due process must come first before anyone is deprived of life, liberty or property. In all of the cases I reviewed so far, none has this style of argument brought up.

The Second Amendment was not put in there for hunting purposes, but for a very specific reason as pointed out by St. George Tucker, a lawyer, Revolutionary War militia officer, legal scholar, and later a U.S. District Court judge:


The right of the people to keep and bear arms shall not be infringed, and this
without any qualification as to their condition or degree, as is the case in the
British government.
This may be considered as the true palladium of
liberty... The right of self-defense is the first law of nature; in most
governments it has been the study of rulers to confine this right within the
narrowest limits possible. Whenever standing armies are kept up, and the right
of the people to keep and bear arms is, under any color or pretext whatsoever,
prohibited, liberty, if not already annihilated, is on the brink of destruction.
In England, the people have been disarmed, generally, under the specious pretext
of preserving the game: a never failing lure to bring over the landed
aristocracy to support any measure, under that mask, though calculated for very
different purposes. True it is, their bill of rights seems at first view to
counteract this policy: but the right of bearing arms is confined to
protestants, and the words suitable to their condition and degree, have been
interpreted to authorise the prohibition of keeping a gun or other engine for
the destruction of game, to any farmer, or inferior tradesman, or other person
not qualified to kill game. So that not one man in five hundred can keep a gun
in his house without being subject to a penalty.

The US Constitution was not written in Chinese, but by the same English we use today thus no room for translating a meaning.

As we have seen in recent times like in the countries of Iran and Afghanistan, the reason for the Second Amendment still hold true today as it did well over 200 years ago. How can we be a country of ‘freedoms” if every aspect of our daily lives is getting more and more legislated by an overzealous government and the People have no means to ensure those freedoms?