MK3 BLOG

MKitch3|Sept. 30,2025

Source in part: Jon Roland, Constitution Society 

Published in University of West Los Angeles Law Review, Vol. 34, 2002.

Introduction

During the 20th century, Congress and state legislatures have adopted a great deal of legislation for the ostensible purpose of public safety, by defining a class of persons considered "dangerous", and making it a crime to for such persons to acquire or possess firearms or ammunition or for other persons to convey firearms or ammunition to them. At the federal level, Congress passed the Omnibus Crime Control and Safe Streets Act of 1968,^[1] containing Title VII, §1202 (a)(1) proscribing the possession of firearms by any person who "has been convicted by a court of the United States or of a State ... of a felony." In 1986 Congress passed the Firearms Owners Protection Act,^[2] which has been amended several times. This legislation has been codified in 18 U.S.C. §§ 921-924^[3], and provisions of it sustained by U.S. Supreme Court majorities in such cases as Lewis v. United States, 445 U.S. 55 (1980)^[4] and Caron v. United States, 524 U.S. 308 (1998)^[5].

However, in 1995 the Supreme Court struck down a part of these sections in United States v. Lopez, 514 U.S. 549 (1995)^[6], on grounds of lack of authority under the Commerce Clause, but the provisions have since been restored by Congress with language added relating them to "interstate commerce", and the restored provisions have not yet been tested in the courts. In May, 2000, the Supreme Court decided in United States v. Morrison, Docket 99-5^[7], and in Jones v. United States, Docket 99-5739^[8], to restrict the civil and criminal powers of the federal government asserted under the Commerce Clause. Although narrowly decided, the opinions in these cases, especially those of Justice Thomas, create a challenge to the entirety of 18 U.S.C. §§ 921-924, as does the present case of United States v. Emerson, Cr. Act. C:98-CR-103-C, which struck down 18 U.S.C. § 922(g)(8) on the grounds that it violates the Second Amendment. This holding was reversed, and the case remanded, by the Fifth Circuit, but that decision is expected to be appealed to the Supreme Court, if the government pursues it at the trial level.^[9]

This article argues that in addition to the other violations of the Constitution of provisions of 18 U.S.C. §§ 921-924, its provisions also violate the Fifth Amendment right of due process, and the prohibition in U.S. CONST. Art. I § 9 Cl. 3 of bills of attainder and ex post facto laws, and rest upon violations by the states of the prohibition in U.S. CONST. Art. I § 10 Cl. 1 of bills of attainder and ex post facto laws.

"We the people are the rightful masters of Congress and the courts, not to overthrow the Constitution, but to overthrow men who pervert the Constitution."
— Abraham Lincoln

"Dangerous" persons?

The classes of persons considered too "dangerous" to possess firearms are listed in 18 U.S.C. § 922(g):

(g) It shall be unlawful for any person –

(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;

(2) who is a fugitive from justice;

(3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));

(4) who has been adjudicated as a mental defective or who has been committed to a mental institution;

(5) who, being an alien –

(A) is illegally or unlawfully in the United States; or

(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(26)));

(6) who has been discharged from the Armed Forces under dishonorable conditions;

(7) who, having been a citizen of the United States, has renounced his citizenship;

(8) who is subject to a court order that –

(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;

(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and

(C)

(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or

(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or

(9) who has been convicted in any court of a misdemeanor crime of domestic violence, to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

However, on ATF forms an applicant for purchase of a firearm must sign, under penalty of perjury, somewhat different language:

Is applicant –

a. Charged by information or under indictment in any court for a crime for which the judge could imprison him/her for more than one year? An information is a formal accusation of a crime made by a prosecuting attorney.

b. A fugitive from justice?

c. An alien who is illegally in the United States?

d. Under 21 years of age?

e. An unlawful user of or addicted to marijuana, or any depressant, stimulant, or narcotic drug, or any other controlled substance?

f. Subject to a court order restraining him/her from harassing, stalking, or threatening an intimate partner or child of such partner?

Has applicant –

a. Been convicted in any court of a crime for which the judge could have imprisoned him/her for more than one year, even if the judge actually gave him/her a shorter sentence?

b. Been discharged from the armed forces under dishonorable conditions?

c. Been adjudicated mentally defective or been committed to a mental institution?

d. Renounced his or her United States citizenship?

e. Been convicted in any court of a misdemeanor crime of domestic violence? This includes any misdemeanor conviction involving the use or attempted use of physical force committed by a current or former spouse, parent, or guardian of the victim or by a person with a similar relationship to the victim.

The problem with this somewhat broader language on the form is that the applicant must sign it "under penalty of perjury", and for that purpose the interpretation of the language is not limited to that authorized by the statute. "Any court" could be interpreted to include courts of foreign countries, for "offenses" that would not be offenses in the United States. Whether an alien is "illegally" in the United States is not always easy to determine, and might be the current subject of litigation. What is the authority for the age limit, especially when under state law the disabilities of minority might have been removed for all purposes except voting? While the statute provides that the substance to which someone might be addicted be "controlled" under 21 U.S.C. 802 §102, under the language of the form the applicant could be prosecuted for being addicted to alcohol, coffee, cigarettes, or chocolate, which are "controlled" under various state and local acts to varying degrees. What is an "intimate partner", and what is the authority for making that a predicate for disablement of a civil right? What if the commitment to a mental institution was only for a few days for evaluation, and the person was determined to be in good mental health?

For that matter, what is the authority for a federal agency to require applicants for the exercise of a civil right to sign a statement "under penalties of perjury"? Is there any constitutional authority to prosecute anyone for perjury outside of the territory and jurisdiction of federal enclaves? We will return to these questions below.

Let us examine some the difficulties of defining a class of "felons" or "serious offenders" or "dangerous persons" for whom the right to keep and bear arms is to be legislatively disabled:

1. "Felons" are not always violent people who would misuse a firearm. Some laws are drafted so broadly that penalties that meet the simplistic definitions used in the 1986 Firearms Owners Protection Act are imposed on widely different behaviors. Despite the fact that the Act specifies "violent" felonies, the enforcement of the Act has considered all felonies "violent" just because they are "felonies".
   1. Lewd behavior is a "felony" in some states, but can include anything from relieving oneself in the wrong place, to social protest, to topless sunbathing, to flashing.
   2. Pornography is a felony by some local standards, but what is pornographic changes. The term has been applied to books now considered classics, to classical art such as naked Greek statues, or to parents who innocently took pictures of their children as naked babies.
   3. In many states gambling is a felony, depending on the game played and the amount bet.
   4. Impregnating a woman, even if one later marries her, or even nonmarital cohabitation, can be a felony in some states.
   5. Procuring an abortion was once a felony in most states. If one did it when it was illegal and was convicted, one would be a "felon" for the purposes of the federal Act.
   6. Income tax evasion, or filling out government forms incorrectly, can be a felony. So can donating too much money to a political campaign, defending oneself from attack by a dangerous animal that happens to be a member of an endangered species, filling in a part of one's backyard that some bureaucrat decides is a "wetland", and some types of illegal dumping. Many of these laws do not require criminal intent.
   7. Many states have similar names for crimes, some of which are felonies and some are not. Larceny "over" a certain value may be a "felony", and "under" that value a "misdemeanor", but the value varies from state to state, and even within a state, the laws and values may change.
   8. Penalties for the same offenses have often increased from one year to the next. Conviction of drunk driving in Massachusetts in 1993 would not have disqualified one from having a firearm, but would have done so beginning in 1994.
2. Although The Brady Handgun Violence Prevention Act requires the FBI to destroy the records of checks, that provision is being ignored, and the "instant check" system establishes not just a national gun registration system but a national dossier and tracking system of all citizens. Previously forbidden from maintaining dossiers on individuals unless they were the subjects of a criminal investigation, the federal government is now compiling massive amounts of information on everyone. Not all of that information is correct, yet people are being prosecuted on the basis of that incorrect information.
   1. Each state has different laws and standards. There is no uniform labeling of crimes or characterization of offenses as misdemeanors or felonies. In many states, the older criminal records are not in good order.
   2. Until fairly recently, all records were kept by hand locally. Different courts kept their records in different ways. There were differences in the way judges handled cases.
   3. Many states have methods which allow the judge to impose court supervision without giving the accused a criminal record. Terms such as "pre-trial diversion", "pre-trial probation", "continuance without a finding", "placing on file", "conditional dismissal", and "suspended finding", describe dispositions which do not result in giving the accused a criminal record. Because judges believed nothing more than a fine would result from such dispositions, they were quick to impose them without much thought to the guilt or innocence of the accused.
   4. In some areas, records of closed cases have been destroyed leaving only cryptic entries describing the charges but not the disposition of the case. When the NICS^[10] check is conducted, it frequently turns up these partial records. The "instant check" FBI staff assume the worst, even though the records were ambiguous.
   5. Although not authorized by law to do so, the "instant check" also looks at the NICS records of arrests. If no follow up entry was made in that data base indicating what happened after the arrest, the government tends to treat the reported arrest as if it were a conviction. The citizen is then forced to prove he was not convicted.
   6. There is no time limit on convictions. A check could turn up a record 60 years old. Tracking down older public records to establish nonconviction or to correct erroneous information can be very difficult.
   7. A criminal conviction remains forever unless one is pardoned, has the record expunged, or one lives in a state that automatically expunges a record on the passage of time. Most states do not automatically expunge records, and some that are supposed to do so, don't.
   8. Some states seal records after a period of time. The sealing of a record does not remove the conviction, it simply hides it from the general public, and perhaps from the person convicted. If one knows or suspects he may have a sealed record, he should consult with his attorney before answering any governmental questionnaire that asks about convictions.
3. Court interpretations of the Firearms Owners Protection Act have resulted in serious problems.
   1. For a time, the federal government refused to recognize state pardons of people with felony convictions and refused to recognize the state classification of a crime as a misdemeanor if the potential penalty was greater than two years. This led to people who committed offenses which were misdemeanors under state law being prosecuted under federal law as though the state offenses had been felonies.
   2. People who had received pardons or who had their right to own firearms restored under state law acquired firearms in good faith, believing they were in compliance with the law, only to be prosecuted by the federal government as felons in possession of firearms. To avoid this the Firearms Owners Protection Act was amended to provide that, "Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction under this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms."
   3. But this provision has been interpreted by a number of federal district and circuit courts in different and conflicting ways.
      1. One argument was that the rights were restored or limited under federal law to the same extent they were restored or limited under state law. This was the argument favored by the dissenting opinion in the Caron case.
      2. The other argument was that a restoration of rights had to be full. If any limitation was placed on firearms ownership, the "unless" section applied. This was the argument that prevailed in the Caron case, the basis for which was a Massachusetts law that restored a person's right to own rifles, shotguns, and handguns five years after a conviction for a felony, but not his right to carry handguns outside his home.^[11]
4. The other categories, not issues in Caron, such as persons with a "history" of "mental disorder" or "addiction" to "depressants" or "stimulants", or the recently added "domestic violence" or "subject of a protective order" provisions of the Lautenberg Amendment to the Act, present similar difficulties of definition, different state and local standards, incomplete, incorrect, or misleading records, and uncertainty for a reasonable and law-abiding person as to whether one of the categories applies to him.
   1. A person may innocently be unaware of an indictment or arrest warrant, and therefore be a "fugitive" without knowing it.
   2. Many persons are routinely required to have a mental examination, without any indication of mental disorder, yet the fact of the order of commitment or examination represents a "history" that could be used to make possession of a firearm a federal crime.
   3. In most states, the results of medical examinations, but perhaps not the fact of them, are sealed under privacy laws and not available for reporting or inquiry without a court order, preventing the subject from being able to establish that the result of the examination was that he had no disorder.
   4. Some persons cooperate in getting a mental health examination without ever knowing there is a court order.
   5. Mental health examinations can include those made of unruly children who later turn out all right.
   6. There are many kinds and degrees of addiction and mental disorder, most of which do not result in violent behavior, and many addicts or mentally disordered persons completely recover.
   7. Angry spouses can falsely accuse their partners of abuse to strengthen their position in anticipated divorce proceedings, and create an arrest record for the subject, without guilt ever being decided by a court of law.
   8. In many divorce proceedings, protective orders are routinely issued without any basis in reported violent behavior. Sometimes the order is just filed away and never served on the subject.
   9. This Act actually operates to put the burden of proof on the subject that he is not legally disabled.

These points should be recognized for the constitutional problems they represent. Disabling the right to keep and bear arms, or any other civil right, on the basis of events that might be indicative of being dangerous, but are not conclusive of it, are prohibited bills of attainder, just as legislation that incarcerated all persons with a XYY chromosome abnormality, because such persons are prone to violent crime, would be.

The definitions and state of record-keeping is not the only difficulty, however. To explore some of the other problems, let us first consider two relevant precedents:

Lewis v. United States, 445 U.S. 55 (1980)^[4]

The majority opinion of BLACKMUN, J., held that

Even though petitioner's extant prior state-court felony conviction may be subject to collateral attack under Gideon v. Wainwright, 372 U.S. 335, it could properly be used as a predicate for his subsequent conviction for possession of a firearm in violation of 1202 (a)(1) of Title VII of the Omnibus Crime Control and Safe Streets Act of 1968. Pp. 60-68.

(a) The plain meaning of 1202 (a)(1)'s sweeping language proscribing the possession of firearms by any person who "has been convicted by a court of the United States or of a State ... of a felony," is that the fact of a felony conviction imposes firearm disability until the conviction is vacated or the felon is relieved of his disability by some affirmative action. Other provisions of the statute demonstrate and reinforce its broad sweep, and there is nothing in 1202 (a)(1)'s legislative history to suggest that Congress was willing to allow a defendant to question the validity of his prior conviction as a defense to a charge under 1202 (a)(1). Moreover, the fact that there are remedies available to a convicted felon — removal of the firearm disability by a qualifying pardon or the Secretary of the Treasury's consent, as specified in the Act, or a challenge to the prior conviction in an appropriate court proceeding — suggests that Congress intended that the defendant clear his status before obtaining a firearm, thereby fulfilling Congress' purpose to keep firearms away from persons classified as potentially irresponsible and dangerous. Pp. 60-65.

(b) The firearm regulatory scheme at issue here is consonant with the concept of equal protection embodied in the Due Process Clause of the Fifth Amendment, since Congress could rationally conclude that any felony conviction, even an allegedly invalid one, is a sufficient basis on which to prohibit the possession of a firearm. And use of an uncounseled felony conviction as the basis for imposing a civil firearms disability, enforceable by criminal sanction, is not inconsistent with Burgett v. Texas, 389 U.S. 109; United States v. Tucker, 404 U.S. 443; and Loper v. Beto, 405 U.S. 473 . Pp. 65-67.

591 F. 2d 978, affirmed.^[12]

The Court would seem to be making it a federal crime for someone to violate the disabilities of the right to keep and bear arms imposed on him by a state court, but that is not what is being done. While there is a presumption that such a state conviction will entail state disablement of the right, that is not necessarily so. It is possible that the state does not disable the right, or that the disability expires automatically upon completion of other components of the sentence, or at some later time, but such possibilities are presumed not to apply unless the subject can prove otherwise. The Act disables a civil right legislatively at the federal level, on the basis of an event, namely an indictment, temporary order, or conviction in a state court, which is not complete due process, which may not have disabled the right at the state level, or if it did, may have since removed the disability, or may yet remove it, as by a retrial and acquittal or with a pardon, after the subject is prosecuted and convicted of a crime in federal court.

So let us ask two questions, and defer the answers to later: Why does the Act not authorize a federal agency or prosecutor to deliver the subject to a state court for prosecution under state law, and perhaps provide the prosecutor, if the subject has violated a state disability? And if not, what is the constitutional authority to legislatively disable a civil right on the basis of an element of due process, namely indictment or conviction, performed by another sovereign, the state, but perhaps not completed by it, or with a disablement that does not cover the particular instance, or is no longer in effect?

Caron v. United States, 524 U.S. 308 (1998)^[5]

This case further demonstrates how politics or public policy, without a grounding in constitutional fundamentals, can yield a morass of contradictions and unjust outcomes. It arises out of the 1986 Firearms Owners Protection Act,^[2] as amended, which forbids a person convicted of a serious offense to possess any firearm, 18 U.S.C. § 922(g)(1), and requires that a three-time violent felon who violates § 922(g) receive an enhanced sentence, § 924(e). However, a previous conviction is not a predicate for the substantive offense or the enhanced sentence if the offender’s civil rights have been restored, “unless such ... restoration ... expressly provides that the person may not ... possess ... firearms.” § 921(a)(20) (emphasis added). The petitioner in this case was convicted under the Act for possession of some rifles and shotguns, even though on one of his original convictions he had had his civil rights restored by operation of a Massachusetts law that permitted him to possess rifles but restricted his right to carry handguns. The decision of the Court was to uphold the conviction and longer sentence, on the argument that, although he had a right under Massachusetts law to possess the rifles and shotguns, the disability for carrying handguns made the federal charge applicable under the above "unless" clause, even though he didn't have any, so that if there were any limitations on firearms ownership remaining after a restoration of rights, the federal law prohibited such person from possessing any firearms. That is, even if the state specifically said the person could have certain firearms, the federal law would not recognize that. Justices Thomas, Scalia, and Suter dissented on this argument, but neglected to examine the more fundamental issues that invalidate the entire Act.

The case arose from enforcement of The Brady Handgun Violence Prevention Act,^[1] 18 U.S.C. §§ 921-22 (1994), a political compromise in which the NRA accepted and supported its "instant check" system^[10] by the FBI on prospective purchases of firearms, forbidding purchases to certain categories of persons, as an alternative to new gun laws. The FBI has claimed that this system has prevented sales of firearms to hundreds of thousands of "felons" and other "dangerous persons", but what seems like a good public safety outcome is often unjust, besides being unconstitutional using the criteria and methods on which the sales are rejected. Where political compromises are involved, constitutional principles tend to be compromised along with the policy preferences, making moot the presumption of the constitutionality of legislation.

While all this might indicate a need to tune the standards, standardize the definitions, and improve state and federal recordkeeping, there is a fundamental problem that was not addressed in this case: legislative disablement of a civil right, even upon "conviction" of a "felony".

"Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government."
— James Madison

Fundamentals of the Constitution

U.S. CONST. Art. I § 9, Cl. 3:

No Bill of Attainder or ex post facto Law shall be passed.

U.S. CONST. Art. I § 10, Cl. 1:

No State shall ... pass any Bill of Attainder, ex post facto Law, ...

U.S. CONST. Second Amendment:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

U.S. CONST. Fifth Amendment, in part:

No person shall be ... deprived of life, liberty, or property, without due process of law;

Finally, U.S. CONST. Tenth Amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Let us first consider the Fifth Amendment. What rights are protected by it, what is due process, what does it mean to deprive a person of such a right?

Due process is a judicial proceeding, not a legislative or executive proceeding. It begins with a petition to a court, and ends with an order granting or denying the petition, and perhaps with the execution of the order. In between are procedures to insure that the legitimate interests of everyone affected are protected from injustice. There are two main kinds of due process, a civilproceeding and a criminal proceeding. What distinguishes them is the kind of rights that can be lawfully disabled by each, and the standards for proof. A civil proceeding may only disable a right to property not vested,^[13] and when decided by a jury, is decided by a preponderance of evidence and a statutory supermajority. A criminal proceeding may also disable the rights to life, limb, and liberty, and when decided by a jury, is decided by proof beyond a reasonable doubt by a unanimous vote of a jury of twelve. For convenience, all constitutional rights are grouped into those categories.

The great unsettled issue of jurisprudence is how to define what is due process and what is needed to satisfy the requirement for it. Much of U.S. case law since the 14th Amendment is about "substantive" due process or "procedural" due process. When the United States was founded, many of the judicial and quasi-judicial proceedings we have now were unheard of. It is thought impractical to decide minor disablements by the same standards that were developed for criminal felony trials, in which the life of the accused was at stake, but in criminal proceedings the Fifth and 14th Amendments make no allowance or exception for minor deprivations of liberty or property. In civil cases the Seventh Amendment guarantees the right of a jury in cases involving a value of more than twenty "dollars",^[14] which opens the way for lesser due process protections for disablements whose value is less than that. However, there is no such constitutional threshold for criminal proceedings below which lesser due process protections than those for a trial for a capital offense might be applied.^[15]

So how can we now have lesser due process protections for misdemeanors with penalties of less than six months or a year of imprisonment? Or "civil" proceedings on "infractions" for substantial disablements of either the liberty or property of the "subject", if not always the "defendant", which are decided by judges alone? Or administrative proceedings, without a judge, and without the right of adequate counsel or a jury? Are all these kinds of process "due" enough to meet the constitutional requirement? No they are not. Comparable disablements of rights need comparable standards of due process, and disablement of any of the rights recognized by the Constitution and its amendments require the same standard of due process, including substantial disablements of the unenumerated rights of the Ninth Amendment. A substantial disablement of any right is a "punishment" for purposes of due process protection, even if the proceeding is not called "criminal".

In a competency proceeding, which may adjudge the subject mentally defective, or commit him to a mental institution for more than a brief examination, or disable his right to keep and bear arms, the subject should have the same right to a unanimous verdict of a jury of twelve, that he would have if he were being prosecuted for a crime for which the penalty was imprisonment. Likewise if the "penalty" were the deprivation of the property right of practicing his profession, or the parental right of visitation with a child, or the right to vote and hold office, he should also have the same due process protections that someone accused of a capital offense would have.

Bills of attainder and ex post facto laws

Let us now turn to the prohibitions against bills of attainder and ex post facto laws. Established precedents tend to define these terms narrowly. These precedents are confusing, incomplete, and do not reflect all the rights the mandates were meant to insure. They come from isolated unrelated cases. They may have even served to detract from the rights the mandates were meant to preserve because they only reflect portions of what a bill of attainder actually is.

From English law a punishment less than death without a trial is considered to be a bill of pains and penalties, so one of the issues is to determine whether the phrase "bill of attainder" in the Constitution includes the "bill of pains and penalties" as well.

To establish what a bill of attainder really is requires some research and reflection. One researcher has summarized the definitions in the various sources and precedents: "A bill of attainder is a law, or legal device, used to outlaw people, suspend their civil rights, confiscate their property, put them to death, or [otherwise] punish them without a trial."^[16]

In spite of the limited methodology used for determining what is, and what is not a bill of attainder, some elements are:

A. A bill of attainder proper is the administration of death without a trial.

B. Any punishment without trial is a bill of attainder under the doctrine of inclusion of "pains and penalties."

C. Bills of attainder can include any legislative act which takes away life, liberty, or property. (This concept is mostly ignored by courts and legislatures.)

D. Bills of attainder can apply to specifically named individuals or easily ascertainable groups (including the group of everyone).

One of the greatest hazards of bringing a bill of attainder case is one cannot count on the court to support any of the concepts above. In cases where Article I mandates are addressed, the courts sometimes respond to Article III mandates instead. Most courts avoid the issue.

A criminally prohibited act can be malum in se, an actual injury to someone, or malum prohibitum, which is normally justified as an attempt to prevent injury. But opening legislation to preventive measures is dangerous. Punishing people for their past offenses can be justified as prevention of future crimes, and past crimes are indeed usually the best predictors of future crimes, but when legislators try to use acts other than crimes as predictors of crimes, and prohibit those alleged predictive acts, they are disabling the right of the people to engage in such acts for innocent purposes.

Preventive legislation was not unknown to the Founders, but most of their criminal legislation presumed an act which was an injury to a victim. The difficulty with preventative statutory prohibitions is that they involve disablement of everyone's rights on a theory of causation that may not be valid, and may have unintended consequences that are worse than the intended ones. The prohibition of alcohol by constitutional amendment was a classic failure of this kind, and the present "war on drugs" seems to be another one. All too often the predictors chosen are weak or dubious causes of the evil the measure seeks to avoid, and are beneficial in other ways that may greatly exceed the hazards. However, the predictors are too often dramatic in their adverse effects, but diffuse in their beneficial effects, misleading public policy to focus anecdotally on the harm while ignoring the benefits.

Although historically bills of attainder have sometimes imposed punishment legislatively for past acts which may have already been prohibited as crimes, or acts not prohibited as crimes when committed, which would be make them ex post facto laws, some have been justified as preventive, and sought to avoid political opposition by being imposed on a minority class or faction out of power. This would make bills of attainder the legislative equivalent of civil injunctive or mandamus relief, but without the trouble and expense of the plaintiff proving he would be injured if the relief sought is not granted. If done for alleged past acts that were crimes, it is disablement of public rights without due process of law, but if preventive, it is disablement of public rights for possible future acts, and that is in clear conflict with the purpose of government being the protection of rights. Rights may sometimes conflict and need to be balanced, but actual rights must be balanced against actual rights. It does not work to disable actual rights to prevent possible future infringements of rights that may never occur.

The linking of ex post facto laws and bills of attainder to criminal actions fails to consider that the purpose of these provisions is protection of the rights of defendants, and it matters little, except perhaps to the reputation of the defendant, whether the action is called "civil" or "criminal" if the right sought to be disabled is the same. A competency hearing that seeks to confine the defendant to a mental institution is a petition to disable the liberty of the defendant, and as such must be accorded the same due process protections that a "criminal" action would have that sought to imprison the defendant. For the defendant there is little difference between confinement in a mental institution and confinement in a penal institution.

These considerations also open the question of the constitutionality of punitive damages in civil cases. They imply that such punitive damages are necessarily of a character that requires criminal due process. There is no constitutional prohibition against combining civil and criminal cases in a single action, but punitive damages must be imposed by a unanimous verdict of a jury of twelve, based on proof beyond a reasonable doubt, with all the due process protections of criminal trials.

Weak definitions from court decisions

U.S. v. Brown, 381 U.S. 437 (1965)^[17], U.S. v. Lovett 328 U.S. 303 (1946)^[18], and In re Yung Sing Hee (1888)^[19] establish bills of pains and penalties as punishment without trial, and included within the prohibitions of bills of attainder. The precedent that best reflects most of the original intention of the mandates is from Cummings v. Missouri, 71 U.S. 277 (1867).^[20] It states, "A bill of attainder, is a legislative act which inflicts punishment without judicial trial and includes any legislative act which takes away the life, liberty or property of a particular named or easily ascertainable person or group of persons because the legislature thinks them guilty of conduct which deserves punishment."

U.S. v. Lovett was a case historically relevant to taking away pay checks of government workers Congress could accuse of being Communists. This was an asset forfeiture case. It states:

"Legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a trial, are 'bills of attainder' prohibited under this clause."^[18]

The usual argument made for a restrictive construction of the "bill of attainder" clauses is that they only mean "punishment", and that deprivation of rights other than by death or incarceration in a prison are not "punishments" for the purpose of those clauses. The argument is further made, against the group being very large, or even the entire population, that the prohibitions are only intended to protect "small" groups. But is it the right being disabled, or the number of persons affected, that make a bill of attainder? If it is a bill of attainder when it designates a single individual, or ten, or a hundred, then how many persons have to have their rights disabled before it ceases to be a bill of attainder? What would a legislative act be if it, say, terminated the right to vote for the entire population, and suspended all further elections, or deprived the entire population of the right to practice any religion, or to speak critically of the government, or to keep and bear arms (except, of course, the elites in control of the government)? It would be unconstitutional, and not just because it violated rights explicitly recognized and protected, but because it would be a bill of attainder. And it would be a bill of attainder if it disabled any of the unenumerated rights recognized in the Ninth Amendment.

The argument is further made that all legislation has some adverse effect on some people, and that it is often possible to identify from the statement of the legislation who those persons adversely affected will be, making them an identifiable group to which the bill of attainder clauses might apply if the clauses were interpreted broadly. Any regulation, or tax, it is argued, will deprive some people, perhaps most persons, of property or the use or value of it, so if the bill of attainder clauses were interpreted as broadly as it is herein being argued we should, the prohibitions would be prohibitions on all legislation. This argument is specious. The delegated powers to regulate and to tax were intended as exceptions, provided that they be exercised in a reasonable and uniform manner. The same argument could be made about the takings clause of the Fifth Amendment, and indeed there is a large and murky body of case law that has arisen to determine at what point the impact of legislation, or executive actions under the authority of legislation, on the property rights of persons, becomes sufficiently severe to constitute a "taking" requiring compensation.

Interpretative guidance from the Founders

One clue to the proper interpretation of the bill of attainder and ex post facto clauses can be found in the many statements, by Madison and others, that the Bill of Rights, which includes the Fifth Amendment with its protections for due process and uncompensated taking of property, were not necessary because there were no powers delegated to violate such rights, or that such prohibitions as were needed had already been included in the original Constitution.^[21] If that is so, then we should be able to find all the protections of the Bill of Rights, including the Fifth Amendment, in other clauses of the original Constitution, or in the absence of clauses. If we search the clauses of the original Constitution with this in mind, we find the bill of attainder and ex post facto prohibitions being the only clauses that could have the same meaning, in terms of limits on, or nondelegations of, powers, as those clauses in the Fifth Amendment requiring due process and prohibiting uncompensated takings. If a broad interpretation of the bill of attainder clauses is not appropriate, then what is the basis for the prevailing broad interpretation of the semantically equivalent Fifth Amendment clauses?

All the provisions in the Constitution that were meant to preserve the right of private property over the right of the government to take property have been abused to the point that there is no protection for private property. The evidence that this was never meant to be is overwhelming. Founder Samuel Adams said, "Now what liberty is this when property can be taken without permission." Some case law exists that reflects this idea. Cases like, U.S. v. Brown, U.S. v. Lovett, and Nixon v. U.S., 978 F. 2d 1269 (1992)^[22], all state the government does not have the right to confiscate property. One can wonder if the opposition in the Nixon case had invoked Calero-Toledo^[23], would President Nixon have lost his rights to private property? As it stands, it is another case of the bill of attainder mandates protecting the right to private property.

The preservation of a group or individual's protection of life, liberty, and property have fallen by the wayside in American law. Any prosecutor that waves Calero-Toledo in front a judge takes any property he wants, and in some cases without a trial. It has also been ruled in U.S. v. Ursery^[24], that it is not a violation of the Double Jeopardy clause to pursue both criminal and civil punishment in cases arising from the same offense. Further, the Court in Bennis v. Michigan^[25] has allowed the confiscation of property from "innocent owners" without due process. So much for "any" legislative act, so much for "any" protection at all from the bill of attainder mandates. No matter what relevance the mandates had in our past without the protection from bills of attainder in our law we have been robbed of the civil rights the Constitution was meant to preserve.

Further insight comes from examining several questions. Are bills of attainder and ex post facto laws disjunctive, is one a subset of the other, or do they overlap partially but not completely? Clearly, ex post facto laws are bills of attainder when they apply to the class of convicted persons and operate to increase the penalty, or likelihood of penalty, for them. Therefore, a class of persons convicted of something can be a suspect class for which, if a legislative act imposes a penalty on them, either after sentence is passed, or not as part of the sentence, that act is a bill of attainder.

Does it have to be a legislative act to be a bill of attainder or ex post facto law? No. Executive acts, purportedly under color of authority of a legislative act, such as regulations or administrative actions, can have the effect of a bill of attainder or ex post facto law, and therefore the act which authorizes the executive action, to the extent it authorizes that executive action, is a bill of attainder, and if the effect is retroactive, an ex post facto law.

The discussion during the Federal Convention limited bills of attainder and ex post facto laws to criminal disablements, but examined more carefully, they are actually just a complementary way to restate the requirement for due process in the Fifth Amendment, and include vested property as well as life and liberty. The Fifth Amendment says constitutional rights may only be deprived by judicial due process, and the prohibitions are against doing that by legislative process or executive process not based on a court order. Together, they emphasize that any disablement of a constitutional right must be by order of a court of competent jurisdiction upon petition and proof under due process protections of the rights of the defendant.

There is one way, however, in which the semantic content of the prohibition against bills of attainder and ex post facto laws differs from the protections of due process rights under the Fifth and Fourteenth Amendments. The latter creates standing for petition for redress only after one's rights have been violated. The former creates standing for petition for redress upon adoption of the legislation, and implicitly recognizes the right, which can be considered to be included in the unenumerated rights of the Ninth Amendment, to not have legislation enacted which creates the fear of prosecution, even if that prosecution does not occur. In other words, any person who might be subject to the act, even if not being actively threatened by it, and without admitting to being subject to it, or to having it apply to him, would have standing to seek a declaratory judgement that the act was unconstitutional. While this is contrary to current judicial practice, it follows logically from the words of the Constitution.

What the legislative branch can do is prescribe the penalties to be imposed upon conviction of a crime. Indeed it must prescribe some such penalties for it to be a crime. But those penalties must be made explicit in the sentencing order to disable the rights of the defendant, and if they are not, then the disablement is not by due process, even if there was a trial.

A thought experiment

To understand this point, let us conduct a thought experiment. Suppose someone petitions a criminal court to prosecute an accused person for some offense, say, "parting one's hair on the left", and he seeks the death penalty. The first thing he would have to do is get an indictment from a grand jury. Could he get one? Of course. The grand jury is not supposed to return a bill of indictment on a charge that is not authorized by a lawful penal statute, but they might be willing to indict a ham sandwich, so they might do it anyway.

So the newly authorized prosecutor asks for a trial date, and the defendant's counsel moves for dismissal on the grounds that there is no statute authorizing the charge. The judge is supposed to dismiss the case on those grounds, but suppose he doesn't. Happens all the time. So it goes to trial, and the defendant demands and gets a jury.

Now, could the jury convict the accused of parting his hair on the left? Sure it could. The accused admits he parts his hair on the left. There are plenty of witnesses with evidence that he does so regularly. Now, the jury is not supposed to find the defendant guilty of the offense, because, logically, to be guilty of an offense requires not only that he did it as a matter of fact, but that what he did is an offense of the kind he is being charged with doing, in other words, that it really is a criminal offense, an act which the constitution authorizes the legislative branch to pass legislation to prohibit, with criminal penalties for those convicted of doing it. So let's suppose the jury unanimously votes to convict anyway.

Now there is a verdict. The accused has been convicted. Has he been deprived of any rights by that event? No. All the verdict does is authorize the judge, or the jury itself if it has the power to prescribe the penalty, to set the penalty, and the judge to issue the sentencing order.

What does the sentencing order do? It does three things. First, it disables one or more rights. That is, it restricts their exercise. In legal theory, constitutional rights are never "lost" or "terminated", but only "disabled", and disabilities can be removed, whereas rights, since they don't come from government, but pre-exist it, could not be restored by government if ever "lost". Second, it penalizes, or imposes a loss of life, limb, liberty, or property that has been enabled by the disablement of the rights of the defendant. Third, it authorizes and directs an official to carry out the penalty. These three components may be collapsed into a few words, but an analysis of what a proper sentencing order does can always be resolved into these three phases.

So let's return to our thought experiment. The jury has brought a verdict of guilty, and thereby authorized the judge to issue a sentencing order. But the prosecutor has demanded the death penalty. Can the judge impose that penalty, even though neither the offense or such a penalty is authorized by law? He is not supposed to. He is limited to those penalties which the legislature has prescribed for that offense, and if there are no penalties, there is no offense, even if the defendant has been "convicted".

So let's assume the judge has finally looked up the statute which the defendant is accused of violating, and finds there is no such statute, or maybe it is only an administrative statute governing the proper grooming for government employees, with the only penalty for violation being to fire them. Since the defendant is not a government employee, what does the judge do at this point? Sentence the defendant to death anyway? He had better not, if he respects the law. Of course, some judges don't. But what he is supposed to do is only impose the penalties authorized by statute, if any, regardless of what the prosecution is seeking.

So could the legislature prescribe as a penalty the disablement and deprivation of the right to keep and bear arms, as the penalty for some offense, or even for all "felonies", or perhaps all "violent" felonies? Yes it could. It could prescribe a penalty of, say, ten years in prison, a fine, and no right to keep and bear arms for life. But suppose the judge, either through mercy or incompetence, sentenced the defendant to ten years, but omitted the fine or explicit disablement and deprivation of the right to keep and bear arms. If it's not in the sentencing order, can some prosecutor come back on an appeal of the sentence and get the fine or the right to keep and bear arms included in the sentence? In general, court rules and the law do not permit a sentence to be revisited and increased in this way, or offer only limited time and process for doing so. At some point, the sentence is final, and may not be further increased. If there was a mandatory sentence, and the judge did not impose it, the only recourse is against the judge. Nothing further can be done to increase the penalties imposed on the defendant.

So, if it is a violation of due process to later increase the sentence by adding the fine, then how can it be consistent with due process to later add the disablement of the right to keep and bear arms? Both are prescribed by law, both were omitted from the sentencing order. How does the one penalty differ from the other, that one should be beyond later inclusion in the sentence and the second assumed to be part of the sentence without being made explicit in it? The answer is, to be compliant with the mandate for due process, all disablements must be made explicit in the sentence, as well as all orders to apply the deprivations those disablements allow.

The myth that one "loses all rights" on conviction

So where does the notion come from that a defendant "loses all rights" upon conviction, rather than just those rights disabled and deprived in the sentencing order? Incompetent legal thinking, aided by the lack of political clout by convicted felons and a general public attitude of "let's get tough on crime", but it is unconstitutional.

Cases such as Lewis and Caron illustrate the subversive way that stare decisis doctrine operates to effect a drift away from original understanding. By assigning greater weight to later precedents, and using rules like limits on the length of briefs, and a judicial bias against argument from first principles, the result is akin to the walk of a drunken sailor, from bad precedent to worse, until it becomes extremely difficult to bear the heat from breaking back to constitutional fundamentals.^[26]

So now we can see what the statutes codified under 18 U.S.C. 922-924 do. They legislatively impose a criminal penalty (although it would make no difference if it was civil) on the class of persons convicted (or even just indicted) of a crime, in many cases retroactively, without prescribing it as part of what is to be imposed in the sentencing order. Logically, that is a violation of the requirement for due process and of the prohibitions against bills of attainder and ex post facto laws. It makes no difference that persons convicted or indicted for a crime might present a threat to public safety. So do law enforcement officials acting without lawful authority.

Violation of separation of powers

There is also a fundamental constitutional problem with officials of one sovereign imposing a penalty, either civil or criminal, based in whole or in part on the actions of officials of another sovereign. It is a violation of federalism and the separation of powers. Each branch and level of government is accountable solely to its own electors, and may not delegate authority to officials of another branch or level. In Lewis, what happens if the federal government convicts and sentences someone of the offence of carrying a firearm, on the basis of a conviction of a felony in a state court, and then the state offense is pardoned or overturned on appeal? It simply does not work, constitutionally, for the decisions of a state court to determine whether an act is a federal crime. That applies not only to state criminal proceedings, but to things like protective orders, competency hearings and commitment orders, indictments, arrests, issuance of licenses or permits, or any other official action.

The right to keep and bear arms

We should also note that there is no provision of the Constitution or amendments to it that say "the rights to life, limb, liberty, or property shall not be infringed". Does that mean that by due process of law, all those rights except the right to keep and bear arms may be deprived? Logically, if the Second Amendment had been ratified after the Fifth, it would indeed be an exception. But the ten amendments of the Bill of Rights were ratified at more or less the same time, so is the right to keep and bear arms an exception, or is it included within the rights of life, liberty, and property? For the moment we will take the latter position, but leave the question open for later consideration.

For the sake of completeness we also must consider the question of whether "due process" is a right to "life, liberty, or property" that could itself be disabled by due process. Self-referencing can lead to loops in logic and computer programming, and must usually be excluded. So we exclude due process itself from the rights that can be disabled by due process.

Something should be said about the "right to limb". It is mentioned only in the double jeopardy clause of the Fifth Amendment, together with life. Most other references are to "life, liberty, and property", and the Declaration of Independence used the somewhat more expansive phrase "pursuit of happiness" in place of "property", although they were considered synonymous by the Lockean social contract theory which is the basis for both the Declaration and the Constitution. "Limb" is a term of art, and the "right to limb" is the right to not have corporal punishment inflicted on oneself. So a criminal proceeding is one in which the petition is for death, imprisonment, corporal punishment, or deprivation of vested property for the benefit of the state, as a penalty for an injurious public act, and a civil proceeding is one in which the petition is only for deprivation of property, either for the benefit of the state or for a private party.

So does this categorization cover everything that is sometimes referred to by the term "right"? No, these are constitutional rights, which include natural rights arising from the state of nature, civil rights arising from the social contract, and constitutional rights proper arising from the constitution. All of them are either negative rights against action by government, or positiverights of petition and due process. They are not rights against action by private parties, or for an equal share or sufficiency of some scarce resource, other than for petition and due process, because a constitutional right can only be an equal right, and the only rights that can be equal are the rights to not have something done by government or to have equal access to petition for redress for grievances and get a decision on the merits of a claim. This can yield a positive right to adequate defense counsel in a criminal trial, but it is a right that can always be provided by not trying the accused at all.

So what kind of right is the right to keep and bear arms? Life, liberty, or property? Actually, it is a composite of rights of each category. First, it is an implied right of life. A right, to be meaningful, must include the right to acquire and use the means to secure it, and that includes arms, for use in defense of ones own life. Now liberty is also an implied right of life, because we need liberty to preserve and defend it, although it is also a right in itself, because it includes all those activities which make life worth living, that is, happiness. Property can be considered an implied right of life and liberty, since it includes the right to acquire, keep, and use the means to preserve and defend both, but it also a right in itself, since it includes the right to leave one's property to those one cares about, one's family, friends, or others one favors. So the right to keep arms is a property right and the right to bear arms a liberty right, and both support the right to life and other kinds of liberty and property. But the liberty right to bear arms would be meaningless without the implied right to acquire and keep arms and ammunition for them.

But the Second Amendment mentions the Militia. What is the purpose of that? It is intended to recognize that a person has not just the right to defend himself, but the duty to defend others.^[27] The word militia is from Latin, and means "military service" or, since that activity originally included law enforcement and disaster response, "defense service". When used as a collective noun, as it is used in the Constitution, it means any one or more persons performing militia duty. That duty arises out of the social contract^[28] to mutually defend one another against abuse of rights, and it includes the duty not only to obey laws, but to help enforce them. The militia clauses have a deeper meaning, however. While all the the rights recognized by the Constitution are for the private enjoyment and fulfillment of persons, each of them also corresponds to a militia duty to defend the society. It is not just by exercise of the right to keep and bear arms that we have a duty to defend the community and its members, including ourselves. We also have the duty to exercise our other rights for defense. We do not have the option of not doing our part in defending. That means we have the duty to exercise the right to speak, to publish, to petition, to assemble, to practice religion, to vote, to serve on a jury, and to do every other lawful thing, in defense of the state and its constitution, whenever anything might threaten it.

Now one might ask how religion can be used to defend the state? The answer to that depends on the religion, but most religions seek to develop the virtue of their adherents, and, as many of the Founders observed, civic virtue is essential to the viability of a constitutional republic. Civic decadence is therefore also a threat to the state and its members, and to the extent that religion fosters virtue, it functions as a defense activity, and therefore a variety of militia. That does not mean, of course, that people have a duty to take up arms to suppress moral decadence. The limits on the methods by which decadence may be fought remain. The main methods available are social rejection, setting a good example, and moral instruction, especially of the young, but promoting civic virtue is still a civic duty of defense of the community, even if it is only general preparation for potential threats rather than imminent ones.

By this argument, therefore, the disablement of the right to keep and bear arms is the disablement of a liberty and perhaps a life right, and not just a property right, and as such can only lawfully be done by a criminal proceeding, with all of its special protections, including the right to a unanimous jury verdict and the standard of proof beyond a reasonable doubt.

So could persons be deprived of their arms, considered as property, if there was just compensation? Yes, if there was some public need for the arms. But there is no power to prohibit such persons from acquiring more arms, if they can afford them, without a court order pursuant to a due process proceeding, and to disable the right to acquire arms, the due process would have to be that of a criminal, not a civil, proceeding.

No federal police powers on state territory

How, then, can Congress legislatively disable the right to keep and bear arms for the class of persons defined as those having been convicted of a felony, or even just indicted for one? It does so on the alleged authority of public safety, that is, a police power, and the power to regulate interstate commerce. But does that work? No, it does not. The only delegation of police powers to the union government was limited to federal enclaves created under U.S. CONST. Art. I § 8 Cl. 17.^[29]

First, there is no delegation of police powers to Congress, except within federal enclaves created under U.S. CONST. Art. I § 8 Cl. 17. Second, while "regulation" may be considered "prohibition" of some modalities of something, the original meaning of the term is to make regular, and that implies there must be some modalities that are permitted. It is not a power to prohibit all modalities, and contrary to the opinion of Chief Justice Marshall in McCulloch v. Maryland, 17 U.S. 316 (1819)^[30], the Constitution contains delegations of limited powers, not spheres of action within which the power of Congress is unlimited. Third, the original meaning of commerce included only commodities, and only the purchase or trade in such commodities that begins in one state and terminates in another, or is between a state and a foreign nation. It does not include trade within a state, and it does not include agriculture, hunting, mining, manufacturing, possession, transport, or use of anything. And "commerce" certainly does not include everything which has a substantial effect on commerce. That is simply ungrammatical. The power to regulate is not the unlimited power to do whatever it takes to achieve a regulated outcome. That could be used to authorize anything, even genocide. It is only the power to impose civil penalties on certain modalities of trade in commodities. If normal methods of inspection and imposition of such civil penalties are not sufficient to achieve a regulated outcome, then the government may not extend its power to do other things intended to do so.

The final point needs to be made clear. The Founders distinguished between delegations of powers to impose civil and criminal penalties, and considered the latter not to be an implied power of the former, but a distinct power requiring a distinct delegation of constitutional authority. This can be seen in Resolution 2 of the Kentucky Resolutions of 1798^[31], which asserted the prevailing common understanding at the time that the criminal powers Congress had on state territory were limited to the following subjects:

1. Treason (Art. III § 3 Cl. 2);
2. Counterfeiting (Art. I § 8 Cl. 6);
3. Piracy and felonies on the high seas (Art. I § 8 Cl. 10); and
4. Offenses against the laws of nations (Art. I § 8 Cl. 10).^[32]

Although the Resolutions were controversial concerning their apparent claim of state power to nullify national laws, the provisions on the limits of federal criminal power were unchallenged. Thomas Jefferson, the author, did omit one other criminal power, that of disciplining the military and the militia when in federal service, and Congress was granted the powers similar to that of a state on federal enclaves created by cessions by a state legislature of parcels of land to the exclusive legislative jurisdiction of Congress for public purposes.

Most federal criminal powers are asserted to be authorized by the Commerce Clause, as can be seen above by the ways the clauses recite a connection to interstate commerce, like a mantra, but with as little meaning. It is intellectually dishonest to claim that the Founders intended the national government to exercise police powers on state territory, based on the Commerce Clause. The recent decisions in Lopez, Morrison, and Jones are small steps toward unraveling that usurpation. But they also create a fundamental conflict with the decisions in such cases as Lewis, Caron, and Ursery.^[33]

To answer the earlier question about federal prosecution for perjury, it may be considered an implied power of the above subject powers that a person could be prosecuted for perjury in a case against him on one of the subjects the federal government is empowered to adopt criminal legislation on, but since violation of a state disablement of rights, or of being a dangerous person seeking or in possession of a firearm is not one of them, there can be no constitutional authority for a perjury prosecution.

Remedies

There are several reforms that need to be made at both the state and federal levels:

1. Require all disablements to be explicitly stated in the order of the court, and argued separately in adjudicating the penalty phase.
2. Require the same standards of due process for disablements of all rights recognized by the Constitution, including the right to a unanimous jury verdict for adjudication of mental disorder, addiction, incompetence, or any disablement of the right to keep and bear arms.
3. Establish that in jury trials all legal argument be made in the presence of the jury, and provide jurors with all pleadings, including amicus curiae briefs, and access to an adequate law library.
4. Re-establish independent grand juries, and remove impediments to private criminal prosecutions and public access to grand juries, especially in cases of official corruption and abuse.^[34]
5. Establish that any legislative act which has the effect of disabling the rights, privileges, or immunities of any person convicted of a crime, other than by prescribing constraints on the sentence to be imposed, is to be considered a bill of attainder and is prohibited.
6. Strike down or repeal all legislative disablements of civil rights as bills of attainder and ex post facto laws, and violations of due process.
7. Educate lawyers to make more use of bills of attainder and ex post facto arguments in their pleadings, and judges to give weight to them.
8. Educate the public about what bills of attainder are and that they are to refuse to enforce them if they serve on a jury in a case in which someone is charged under one.
9. Establish that assets may not be forfeited but for payment of a specific fine, nor may assets be forfeited which have not been proven to belong exclusively to the person convicted of the crime, nor in excess of what may be reasonably expected to bring the amount of the fine in a public sale, and all proceeds in excess of the fine from such sale shall be refunded to the owner. Limit in rem proceedings to items for which there is no apparent owner and the owner cannot be ascertained.
10. Strike down or repeal all federal criminal statutes based on the Commerce Clause, particularly firearms legislation.
11. Limit the role of stare decisis, and return to fundamental principles of constitutional interpretation, beginning with original understanding and working forward in every case.^[26]
12. Clearly mark the boundaries between federal enclaves and state territory.

So the answers to the two questions posed earlier are, in reverse order, that the federal government has no constitutional authority to make it a crime to violate a state disability of a civil right. All it can do, and what it should do, is deliver any person accused of violating a state disability to the appropriate state magistrate for prosecution under state law, and perhaps provide the prosecutor for the case.

The present system of disabling the civil rights of broad classes of persons thought prone to misuse of firearms, based on uncertain events, is unconstitutional, as would be any system of licensing or registration. What could be done, constitutionally, is the following:

1. Establish a central database of court disablements of civil rights which any authority could check quickly.
2. Make sure the database is properly updated when disabilities are removed.
3. Establish severe penalties for filing false information in the database, or failing to promptly correct errors, and compensatory relief and damages to persons if such errors occur and are not promptly corrected.
4. Issuance by either government or private organizations to persons of a certificate showing what his disabilities are, or that he has no disabilities, which he can show to any person challenging his exercise of a civil right, as a way to avoid temporary detention while checking the database.
5. Remove all impediments to the purchase or possession of firearms that do not violate the specific legal disabilities to which a person may be subject.

Nothing in the Constitution prevents us from adopting measures that solve the problems before us, but we need to be creative. What we will find is that constitutional measures are also likely to be more effective and less susceptible to corruption and abuse. 

MKitch3|Sept. 30,2025

The following conversations are from my GPT5 Study Constitutional Theory prompt. This is part of a project I started on the subject. This will be updated often.

Let’s study Constitutional Theory 

That’s a huge phrase you just dropped on the table. “Constitutional theory” could mean a dozen different beasts depending on whether you want law-school-seminar depth, “Founding Fathers with quills and whiskey” history, or modern pundits yelling on cable news.

Let’s not sprint before we can walk. To study this properly, I should know what angle you’re interested in:

• Philosophical roots (Locke, Montesquieu, natural rights, social contract)?

• American flavor (Federalist Papers, Anti-Federalist pushback, originalism vs. living Constitution)?

• Rousseau’s general will is put into practice as state sovereignty 

Practical use (judicial review, separation of powers, federalism)?

• Critiques (who gets left out, how it bends under crises, whether courts are kings in robes)?

Before I start dragging you through Madison’s notebooks and Supreme Court spats, which flavor of “constitutional theory” are you hungry for?

Let’s start with the Philosophical roots 

Good choice. The roots are where all the later squabbles grow from. Think of it like the soil: if you don’t know what kind of dirt the Constitution was planted in, you won’t understand why it sprouted the way it did.

Here’s a short cast of characters who shaped the ground:

• Thomas Hobbes: Famous for his “life is nasty, brutish, and short” line. He argued that humans in a state of nature would murder each other for scraps, so people need a sovereign (basically a bossy king) to keep order. Security first, liberty second.

• John Locke: The more optimistic one. He thought humans had natural rights—life, liberty, property—that governments must protect. If a ruler trampled those rights, the people had the right to overthrow him. You can almost hear Jefferson scribbling “pursuit of happiness” here.

• Montesquieu: Obsessed with separation of powers. He warned that if legislative, executive, and judicial power all sat in one set of hands, liberty would suffocate. U.S. founders borrowed this structure wholesale.

• Rousseau: The “general will” guy. He believed sovereignty belonged to the people collectively, and government was only legitimate if it expressed that. More radical than Locke, but he definitely fertilized the democratic streak.

Now here’s where I rope you in: if Hobbes says “give me order,” Locke says “give me rights,” Montesquieu says “split the power,” and Rousseau says “give the people the wheel”—which of those four do you think left the deepest imprint on the U.S. Constitution?

Montesquieu and split the power

Exactly—gold star. The whole architecture of the Constitution screams Montesquieu.

• Articles I, II, III don’t just appear by accident—they carve government into legislative, executive, judicial.

• The checks and balances (veto, impeachment, judicial review, Senate confirmation, etc.) are Montesquieu’s paranoia made into law: no branch gets too comfy.

• Even the federal vs. state split echoes his obsession with dividing authority.

But here’s the twist: the Founders weren’t copy-pasting. They took Montesquieu’s recipe and spiced it up with Locke’s sauce about natural rights and Rousseau’s whispers about popular sovereignty.

So the Constitution isn’t purely Montesquieu’s “don’t let anyone hog power.” It’s Montesquieu’s skeleton with Locke’s heart and a little Rousseau in the bloodstream.

Want me to show you how Locke’s “life, liberty, property” sneaks its way into the actual text of the Constitution and Bill of Rights?

Yes

Alright, watch how Locke’s fingerprints smudge the parchment:

• Locke’s natural rights = life, liberty, property.

• In the Declaration of Independence, Jefferson tweaks it into “life, liberty, and the pursuit of happiness.” That’s Locke with a wig change.

• In the Constitution and Bill of Rights, you see those ideas become guarantees:

• 5th Amendment: “No person shall… be deprived of life, liberty, or property, without due process of law.” That’s Locke almost word-for-word.

• 14th Amendment later doubles down with the same phrase at the state level.

• Consent of the governed (Locke again):

• Preamble: “We the People” doesn’t just sound poetic. It’s a deliberate nod that government authority flows upward from the people, not downward from a king.

• Right to revolution:

• Locke said if a government tramples rights, the people can ditch it. The U.S. basically lived that theory in 1776. The Constitution itself even hints at it—Article V’s amendment process is a legal, non-bloody revolution mechanism.

So Locke gives the why (rights must be protected), and Montesquieu gives the how (structure to stop tyranny).

Quick check: if Locke’s “life, liberty, property” is the fuel, and Montesquieu’s “split the power” is the engine, what role do you think Rousseau’s “general will” played in the U.S. setup?

I think Rousseau’s general will is put into practice as state sovereignty  

That’s a sharp take. Rousseau would’ve smiled (or at least smirked) at the idea of states each holding pieces of the people’s will.

Think about it:

• Rousseau’s general will = the collective decision of the people is sovereign.

• In the U.S., sovereignty isn’t one big block—it’s split between the people of each state and the people of the nation as a whole. That’s federalism in action.

• The 10th Amendment is Rousseau-ish: powers not given to the federal government are “reserved to the States respectively, or to the people.” It’s like the Constitution says: the people’s will can live closer to home, not just in D.C.

The irony? Rousseau believed in a more direct democracy—all citizens gathering to vote. The Founders, terrified of mob rule, watered that down into representative democracy. The “general will” gets filtered through legislatures, courts, and all those checks Montesquieu insisted on.

So Rousseau’s ghost is there, but he’s on a leash.

Want me to map out a simple chart showing Hobbes, Locke, Montesquieu, and Rousseau, and how each “father figure” got baked into the Constitution?

Yes

Here’s a clean chart you can picture in your head (or scribble out if you’re the pen-and-paper type):

So: Hobbes gave the fear of disorder, Locke gave the rights language, Montesquieu provided the architecture, and Rousseau whispered about sovereignty of the people.

Want to take this a notch deeper by looking at where the Founders twisted or even rejected these philosophers when writing the Constitution? That’s where it gets spicy.

Yes.

Now we’re getting into the fun part—the Founders weren’t just obedient students; they cherry-picked and sometimes flipped these philosophers upside down. Here’s the “rebellious remix”:

• Hobbes rejected: He wanted an all-powerful sovereign. The Founders basically said, “nice try,” then built a system where no one can be sovereign alone. The presidency is strong but hemmed in, and the people keep ultimate authority. So Hobbes is in the background more as a warning than a blueprint.

• Locke twisted: Locke said property is the third natural right. Jefferson swaps it for “pursuit of happiness.” Why? Property was politically loaded (slavery, land grabs, wealth inequality). Jefferson softened it, but property still sneaks back in through the 5th Amendment.

• Montesquieu bent: Montesquieu admired England’s system of a king, a House of Lords, and a House of Commons. The Founders said, “We’ll keep the three-branch idea, but no king, thanks.” They also went farther with checks and balances than Montesquieu ever dreamed, basically turning government into a cage match.

• Rousseau diluted: Rousseau loved direct democracy—all citizens voting all the time. The Founders were horrified. They built representative democracy instead, with extra filters like the Electoral College and Senators originally being chosen by state legislatures (not direct vote until 1913). Rousseau’s “general will” got run through layers of insulation.

So the Constitution is less a philosopher’s dream and more a Frankenstein’s monster stitched together from European theory, colonial experience, and a healthy dose of paranoia.

Want me to throw you a quick exercise: imagine if the U.S. had gone full Rousseau with direct democracy in 1787. What kind of problems do you think would’ve blown up right away?

You wouldn’t get anything accomplished with “all” voting “all” of the time. The population was much less then compared to now. 300 million citizens voting every time a topic came to pass? It’s unrealistic much less unsustainable 

Exactly. You nailed the Achilles’ heel. Even in 1787, with a few million people scattered across farms and towns, getting “everyone in the room” was impossible. Add 300+ million today and it’s laughable.

Direct democracy at that scale collapses under its own weight:

• Logistics: Imagine waiting three weeks for your ballot mule to arrive from frontier Kentucky just to vote on a post office budget.

• Speed: Crises—wars, famines, rebellions—need quick decisions. You can’t pause to poll the entire nation.

• Factional chaos: Madison warned about “factions” in Federalist 10. Direct democracy would let majority passions whip-saw policy nonstop, like a national Twitter mob ruling by referendum.

That’s why they settled on representative democracy, insulated by structures (Congress, Electoral College, Senate). It was messy but functional.

Let me flip it back on you: if pure Rousseau doesn’t work, and pure Hobbes (absolute sovereign) is tyranny, what’s the genius middle ground the Constitution is really aiming for?

The people have some sovereignty in the form of unalienable rights, rights/freedoms laid out in the bill of rights. The states keep some sovereignty in the form of state constitutions and the Federal Government is supposed to me the mediator? The people are free but within boundaries, the states keep their sovereignty but within boundaries The federal government being the oversight but within strict boundaries? 

That’s beautifully put—you basically sketched the three-layer cake the Founders were baking.

• Layer 1: The People → Rousseau and Locke smiling in the corner. Individuals hold unalienable rights (Bill of Rights), which no government is supposed to touch. That’s the baseline sovereignty.

• Layer 2: The States → semi-sovereign entities with their own constitutions, laws, and police powers. This is federalism’s “many little laboratories.”

• Layer 3: The Federal Government → designed not as a king, but as a referee, handling what the states couldn’t: foreign policy, war, interstate trade, currency.

And you nailed the most important word: boundaries. Each layer is fenced in by the Constitution. The trick (and the drama for 200+ years) is who decides when those fences are crossed. Spoiler: courts, politicians, and the people have been arguing over those fences since day one.

Want me to walk you through a few of the earliest constitutional crises where those boundaries got tested—and bent—right out of the gate?

Yes

Alright, first round of constitutional growing pains—the “we just built this machine and it’s already smoking” moments:

1. Hamilton vs. Jefferson (1790s) – The Bank Fight

• Hamilton wanted a national bank to stabilize credit and handle federal funds.

• Jefferson cried foul: “Show me where in the Constitution it says Congress can build a bank!”

• Hamilton countered with the Necessary and Proper Clause (“implied powers”).

• Result? Bank created. Federal power stretched. Jefferson sulked.

• Lesson: the Constitution’s “boundaries” aren’t concrete—they bend depending on who’s reading.

2. Alien and Sedition Acts (1798)

• Federalists in Congress passed laws criminalizing criticism of the government.

• Jefferson and Madison fired back with the Kentucky and Virginia Resolutions, arguing states could nullify unconstitutional federal laws.

• Boom: first major clash of federal vs. state sovereignty.

• Lesson: free speech and federal overreach were hot-button issues immediately.

3. Marbury v. Madison (1803)

• The Supreme Court grabbed a power the Constitution doesn’t explicitly give it: judicial review(deciding what’s constitutional).

• Jefferson was furious, but the Court’s move stuck.

• Lesson: the judiciary became the referee, even though the Constitution never said “refs included.”

These early battles show your point: people’s rights, states’ sovereignty, and federal oversight were all there—but the “boundaries” were blurry enough that politicians and judges started redrawing them almost instantly.

Want me to keep marching forward into the Civil War era, where those boundaries didn’t just blur but exploded?

We will resume from here tomorrow night

Got it. I’ll keep the thread right here—Hamilton and Jefferson still bickering in the background, the Alien and Sedition Acts smoldering, and Chief Justice Marshall polishing his referee’s whistle. When you’re ready tomorrow, we’ll pick up with the Civil War boundary-breaking.

Don’t stay up too late plotting revolutions. 

Read more »

MKitch3|Sept. 30,2025

There is considerable confusion about the legal theory underlying the "right to keep and bear arms". This is a brief outline for a clarification of the discussion of this issue.

(1) The Second Amendment to the U.S. Constitution does not establish the right to keep and bear arms. None of the provisions of the Constitution establish any "natural" rights. They recognize such rights, but the repeal of such provisions would not end such rights. Such rights were considered by many of the Framers as obvious or "self-evident", but they were immersed in the prevailing republican thought of the day, as expressed in the writings of Locke, Montesquieu, Rousseau, Madison, Hamilton, and others, which discussed "natural rights" in some detail. Others argued that at least some of the rights needed to be made explicit in the Bill of Rights to avoid having future generations with less understanding of republican theory weaken in their defense of those rights. That has turned out to have been a good idea.

(2) The right to keep and bear arms is a natural right of individuals under the theory of democratic government. This was clearly the understanding and intent of the Framers of the U.S. Constitution and was a long-established principle of English common law at the time the Constitution was adopted, which is considered to be a part of constitutional law for purposes of interpreting the written Constitution.

(3) What the Second Amendment also does is recognize the right, power, and duty of able-bodied persons (originally males, but now females also) to organize into militias and defend the state. It effectively recognizes that all citizens have military and police powers, and the "able-bodied" ones -- the militia -- also have military and police duties, whether exercised in an organized manner or individually in a crisis. "Able-bodied" is a term of art established by English common law at the time the Constitution was adopted, and is the only qualification besides citizenship on what constitutes the "militia". While not well defined in modern terms, it is somewhat broader than just able-"bodied": implicit is also "able-minded" and "virtuous". In other words, persons might be excluded who were physically able to bear arms but who were mentally or morally defective. Defense of the "state" includes self-defense and defense of one's family and friends who are, after all, part of the state, but by establishing the defense of the state as primary a basis is laid for requiring a citizen to risk or sacrifice his life in defense of the state and is thus a qualification on the implicit right of self-defense, which is considered to prevail in situations in which self-sacrifice is not called for.

(4) The U.S. Constitution does not adequately define "arms". When it was adopted, "arms" included muzzle-loaded muskets and pistols, swords, knives, bows with arrows, and spears. However, a common- law definition would be "light infantry weapons which can be carried and used, together with ammunition, by a single militiaman, functionally equivalent to those commonly used by infantrymen in land warfare." That certainly includes modern rifles and handguns, full-auto machine guns and shotguns, grenade and grenade launchers, flares, smoke, tear gas, incendiary rounds, and anti-tank weapons, but not heavy artillery, rockets, or bombs, or lethal chemical, biological or nuclear weapons. Somewhere in between we need to draw the line. The standard has to be that "arms" includes weapons which would enable citizens to effectively resist government tyranny, but the precise line will be drawn politically rather than constitutionally. The rule should be that "arms" includes all light infantry weapons that do not cause mass destruction. If we follow the rule that personal rights should be interpreted broadly and governmental powers narrowly, which was the intention of the Framers, instead of the reverse, then "arms" must be interpreted broadly.

(5) The right to keep and bear arms does indeed extend to the states. As do the other rights recognized by other Amendments, and as reinforced by the Fourteenth Amendment. It is not just a restriction on the powers of the central government. On the other hand, the citizens of a state can adopt a constitution that might restrict the exercise of such rights by delegating the power to do so to the state government. However, if the restriction of natural rights is unduly burdensome on those rights, then such a provision would be incompatible with the U.S. Constitution, its guarantee of the rights, and its guarantee that all states have a "republican" form of government - which such restrictions would compromise.

(6) The legal basis for a government not infringing on the right to keep and bear arms is not constitutional provisions like the Second Amendment, but that the power to do so is not one of the enumerated powers delegated to the government, whether Union or State. That delegation must be explicit as pertains to arms. They can't be regulated on the basis of general powers to tax or to regulate commerce. Arms have a special status under constitutional law. Some State constitutions may delegate such powers to the State government. The U.S. Constitution does not delegate such powers to the Union government. No powers are delegated to government by the preamble to a constitution, which is only a statement of purpose, only by provisions in the body of the document and its amendments.

(7) The legal basis on which the states can regulate arms is in those situations in which they conflict with property rights. It is a fundamental principal in law that the owners or managers of real property have the power to regulate who may enter their premises, and to set conditions upon their entry. That includes public property. Citizens have a right to keep and bear arms -- on their own property or property they control -- but not on someone else's property without his permission.

(8) In other words, citizens have a right to keep and bear arms in those places and situations where they have a right to be, unless such rights are disabled by due process of law. Fundamental natural rights can never be lost, as contractual rights can be, only the exercise of those rights restricted or "disabled", to use the legal term. The distinction is very important. Natural rights are those which the individual brings with him when he enters into the social contract, and reclaims if the social contract is broken. The right to keep and bear arms is such a natural right, as is the right of free speech, religious belief, and privacy. The alternative is a contractual right created by a contract, such as the social contract. The right to vote or to be judged by a jury of one's peers are examples of rights created by the social contract, albeit important ones that are also constitutionally protected. Because they are constitutionally protected, it is only proper to speak of them as disabled, rather than lost, so long as the subject remains a citizen or natural person, depending on whether it is a right of citizenship or personhood.

(9) It is unconstitutional to "disable" any rights by statute except one set: the rights of majority. The disabilities of minority do not need to be established by a court trial or hearing. However, they can be removed sooner than they would be removed by constitution or statute, by reaching a certain age. This means it is unconstitutional to disable the right to keep and bear arms to a class of persons by statute, including those, such as felons, who have been the subject of due process on another issue, except through a proceeding in which the court is explicitly petitioned to disable them, the subject has an opportunity to argue to the contrary, the petitioner has the burden of proof that the subject if armed would be a threat to himself or others, and the court grants that petition. Merely being convicted of a crime, or declared mentally incompetent, is not sufficient if the language of the judgement does not also explicitly disable the right to keep and bear arms, or set restrictions on such right.

(10) "General police powers" is not a constitutional basis for states or localities to regulate arms. "General police powers" are the powers to use the means necessary and sufficient to stop someone who threatens to commit a major crime, or to arrest someone who has done so. All citizens have such power. They differ from regular, professional police only in that the regular police also have "special police powers" in matters such as minor offenses, and in that they outrank civilians. Since citizens have general police powers, they also have the right to such means as they require to exercise such powers in situations in which they may be called upon to do so. That includes arms.

(11) To be constitutional, state laws restricting the bearing of arms must distinguish between public property, private commercial property which serves the public and which therefore confers certain rights to the public, and other private property with no public access rights. It is reasonable and constitutional to prohibit persons from bearing arms onto purely private property without notifying the owner or manager and obtaining his or her permission, except over public easements, such as sidewalks or the walkway from the street to the front door. On the other hand, it would be an undue burden on the right to bear arms to forbid persons from traveling between places where they have a right to be, and to bear arms while they do so, along public pathways or private easements, and using their own or a public means of transportation. It may not, however, be an undue burden to prohibit the bearing of arms onto certain public property where persons do not have unrestricted access, such as office buildings and auditoriums, provided that authorities guarantee the safety of persons who enter unarmed. Owners of commercial property serving the public which confers some rights of access to the public may prohibit the bearing of arms by posting or giving a notice to that effect, but lacking such notice, bearing arms onto the premises would be permitted. The rule must be that laws must not burden the right to bear arms except to the extent that they would impose a greater burden on the right of property owners to exclude persons bearing arms.

(12) The law must presume that places of business that cater to arms, such as gun shops and shooting ranges, and events such as gun shows, offer presumptive permission to bear arms and that therefore it is not illegal to bear them there or to travel to and from them.

(13) A carry permit system essentially is a removal of restrictions against bearing arms on public and private property unless there is an express prohibition against doing so, either in the form of a posted sign or a directive from the owner or his agent. The rationale for issuing such permits is to equip persons of good character to more effectively function as militiamen or police in situations in which regular police are not available or insufficient. That also includes self-protection, but the key factor is the duty to perform police duties as necessary. There also needs to be explicit statutory protection of the state or other permit issuing authority against criminal or civil liability for any acts done by the permit holder. One kind of carry permit is that which is one of the "special police powers" of regular law-enforcement officers, which allows them to carry anywhere, even against the express wishes of a property owner.

(14) With the high levels of crime we now endure, the only effective way to extend police protection to a level that might deter crime is to recruit a substantial proportion of the public to go armed, by issuing them carry permits, offering them police training, and organizing them into a network of militia units closely coordinated with regular law enforcement agencies. It is likely that as many as 25% of the adult public could serve in this way on a regular basis, and another 25% on an occasional basis, and that if they did, we might expect it to have a significant positive impact on crime. Some such citizens might even be granted higher police rank, and perform regular police duties on a part-time basis. Such involvement of the public in law enforcement would also have other benefits: breaking down the social and psychological barriers that now separate the regular police from civilians, and deterring some of the abuses of authority that police have sometimes fallen into.

(15) That the militia should be "well-regulated" is not a basis for restricting the keeping or bearing of arms. The term originally meant "self-regulated" and militias could be independent of state or national authority if not called up by such authority. Militia members may be required to carry certain standard arms during formations, but they cannot be forbidden from carrying additional arms of their own unless doing so would impair normal militia operations. State-appointed officers may direct when, where and in what manner members of the militia are to train and perform their duties, but may not forbid them to meet on their own.

(16) The Union government has the power, under the U.S. Constitution, to regulate imports and interstate commerce in arms, but the Framers would not agree with how the "interstate commerce" clause (Art. 1, Sec. 8) of the Constitution has been broadly interpreted to include regulation of manufacture, possession, and local sales and use of items. A strict constitutional interpretation requires that the Union government has authority only over transactions that cross state lines, and not over actions or transactions that occur within state borders, even if they involve items that may someday cross state borders or may have once done so. If we want the Union government to have such authority, and a good case can be made for that, then the U.S. Constitution needs to be amended to delegate that authority to it.

(17) The Union government also has excise taxing power, but since arms have special status under the Constitution, no tax may be levied that imposes an undue burden on the right to keep and bear arms. Rights are more fundamental than taxing powers, particularly since the right to keep and bear arms is recognized in an amendment which supersedes any prior provisions that conflict with it, which includes all taxing powers except the income tax (which does not provide a basis for taxing arms). Arms may be taxed as general merchandise is, such as with a sales tax, but any tax law which specifies arms for special taxes, other than reasonable use fees for public services related to them, must be considered unconstitutional. That would include taxes on ammunition and the ingredients to make it. The analogy is to taxes on newsprint, which may be taxed like other merchandise, but not in a way that would impose an undue burden on the right of a free press.

(18) This means that no government has the power, unless that power is specifically granted to it under its constitution, to prohibit any person from manufacturing or possessing any gun or ammunition for it on his own premises or where he has a right to be, or against using it in a safe and responsible manner, or against selling or giving it to another person within the borders of a state.

(19) Since the common law prevailing at the time the Constitution was adopted defined "militia" to consist of "able-bodied" citizens, including persons younger than the usual age of majority, any law restricting the possession, sale or gift of guns or ammunition to persons under the age of majority or any other particular age, or to minors (since persons under the age of majority may have their disabilities of minority removed by a court), is also unconstitutional, unless the constitution explicitly includes a disability of the right to keep and bear arms among the disabilities of minority. The proper test for being "able-bodied" must involve meeting certain standards that are independent of age, such as skill, judgement, and level of maturity. It is possible for persons to be "able-bodied" at quite a young age, and the law must recognize that competence where it exists. All citizens above the age of majority would have to be presumed able- bodied unless they or the state petitioned a court to rule otherwise and it granted the petition. However, it would be constitutional to require a reasonable test of competence to citizens below the age of majority, and to issue credentials to those qualifying which they would be required to show when answering calls of the militia or, if the right to keep and bear arms were included among the rights disabled by minority, when bearing arms. Early removal of the disabilities of minority would then also remove the disabilities of the right to keep and bear arms.

(20) The "full faith and credit" clause of the U.S. Constitution requires that persons issued a carry permit by one state must have that permit recognized in other states. This suggests a uniform standard for qualifying persons for issuance.

REFERENCE: Stephen P. Halbrook, That Every Man be Armed, available from The Independent Institute, 134 98th Av, Oakland, CA 94603, 510/568-6047.

Source: Constitution Society.

MKitch3|Sept. 28,2025

Principles of Tyranny

Tyranny is not a relic buried with kings and empires. It’s a recurring pattern of human behavior—an algorithm of control. Strip away the flags, languages, or centuries, and the methods are eerily consistent. From ancient empires to modern democracies, tyranny sprouts from the same soil: fear, obedience, and the human appetite for power.

Tyranny Through the Ages

• Rome: The Republic promised checks and balances, but Julius Caesar crossed the Rubicon, and the Senate—meant to defend liberty—voted itself into irrelevance. Bread and circuses kept the mob content while the state rotted.

• Medieval Europe: Monarchs wrapped themselves in divine right, squeezing peasants dry with taxes to fund wars and castles. Resistance was blasphemy.

• 20th Century: Stalin’s purges, Hitler’s Gleichschaltung, Mao’s Cultural Revolution—each tailored to their culture, but all rooted in censorship, fear, and the destruction of dissent.

The American Experiment

The United States was supposed to be the antidote. Jefferson warned, “The natural progress of things is for liberty to yield, and government to gain ground.” Madison wrote the Constitution not as a trust exercise but as a cage for politicians. The Bill of Rights was a line in the sand, declaring: no matter how noble your excuse, these rights are not up for debate.

But America is not immune.

• Civil War suspensions of habeas corpus (Lincoln’s heavy hand).

• The Palmer Raids (1919–20): mass arrests with no due process.

• Japanese internment during WWII: citizens in camps by executive order.

• The PATRIOT Act after 9/11: surveillance normalized, privacy abandoned.

• Modern Era: “Misinformation” boards, censorship through proxies, agencies writing laws Congress never voted on.

The lesson? Tyranny rarely marches in boots anymore. It comes in spreadsheets, executive orders, and “for your safety” press conferences.

The Machinery of Tyranny

Every tyrant—whether crowned, elected, or algorithmic—works from the same toolkit:

1. Control of Speech: Silence dissent and label it “dangerous.”

2. Control of Arms: Disarm the people while arming the state.

3. Control of Money: Taxation, inflation, and central banks keep citizens tied to the system.

4. Control of Fear: A crisis—real or manufactured—justifies “temporary” powers that never expire.

5. Control of History: Rewrite the past so resistance has no precedent.

Why People Obey

Alexis de Tocqueville observed in Democracy in America: “It is indeed difficult to imagine how men who have entirely given up the habit of managing their own affairs could succeed in choosing those who are to manage them.” The truth is ugly: tyranny endures because people trade responsibility for security.

Benjamin Franklin, with his usual bluntness: “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”

America, Now

Ask yourself: do you live freer today than your grandparents did? More surveillance cameras. More taxes. More laws written by unelected bureaucrats. More wars authorized without declarations. The pattern is familiar. The republic doesn’t collapse overnight; it’s hollowed out by termites of compliance until only the facade remains.

Conclusion

The “principles of tyranny” are not academic curiosities. They’re warnings carved in blood across centuries. If the United States follows the same road—and it already has one foot down it—the outcome will be no different than Rome, France, Russia, or Germany. The difference is whether the citizens recognize the signs in time, and whether they remember that the Constitution was meant to chain the government, not the people.

MKitch3|Sept. 24,2025

This post is in large based off my Democracy vs. Republic white paper.

TL;DR

• Democracy = political power originates with the people; pure/direct democracy means the people vote on laws themselves.

• Republic = the people rule through a constitution and representatives, with power limited by law to protect rights (especially of minorities).

• The United States is a constitutional, federal, representative democracy—in short, a democratic republic. We use elections (democratic) inside a framework of higher law and checks and balances (republican).

• The fight of our politics is balancing majority rule with constitutional limits. If you forget either side, the system stops working.

Why this old debate still burns

Every election season someone says, “America is a republic, not a democracy,” like it’s a mic drop. It isn’t. It’s a half-truth that misses the real point.

What the Framers actually built is both: democratic foundations (sovereignty of “We the People,” elections, consent) and republican guardrails (a written Constitution, separation of powers, judicial review, federalism, and individual rights that don’t vanish when 51% get grumpy).

Understanding that blend isn’t pedantry; it’s civic survival. It explains why some ideas polling at 60–70% still don’t become federal law overnight, and why courts sometimes block wildly popular measures. You’re watching the brake-and-throttle design at work.

Two words, two lineages

Democracy (Athenian DNA)

• Etymology: dēmos (the people) + kratos (rule).

• Classical model: 5th-century BCE Athens—citizens (a limited class) gathered in the Assembly to debate and vote directly on war, taxes, ostracisms, you name it.

• Strengths: maximal participation; equality among citizens; political energy.

• Risks: speed + passion = volatility; prone to demagoguery; minority rights are negotiable at best.

   “A democracy is the rule of the many.” —Aristotle (paraphrase)

Republic (Roman DNA)

• Etymology: res publica—“the public thing,” the commonwealth.

• Classical model: the Roman Republic—mixed government with Consuls (executive), Senate (aristocratic deliberation), popular assemblies (citizen voice), Tribunes (veto power).

• Strengths: structure, law, and redundancy; scaling to large territories; durability.

• Risks: can drift into oligarchy; if virtue erodes, institutions hollow out and strongmen step in.

   “We are a nation of laws, not of men.” —early American maxim with Roman roots

A quick timeline (for readers who like anchors)

• 508–322 BCE — Athenian democracy (direct rule; high citizen throughput; two oligarchic interruptions; finally crushed by Macedon).

• 509–27 BCE — Roman Republic (mixed regime; civic virtue central; dies in civil war → Empire).

• 1215 — Magna Carta (king bound by law; seed of constitutionalism).

• 1689 / 1748 — Locke (consent, natural rights); Montesquieu (separation of powers).

• 1776 — Declaration of Independence (people are sovereign; government exists to secure rights).

• 1787–88 — U.S. Constitution & Federalist Papers (republican architecture to channel democratic power).

• 1791 → — Bill of Rights (non-negotiable liberties).

• 1868–1920 → — Reconstruction & women’s suffrage (democratization of the electorate).

• 1954–1965 → — Civil rights era (courts + Congress enforce constitutional equality).

The Founders—clear-eyed, not naïve

They had read the Greeks and Romans. They’d seen revolutions run hot. They wanted popular government—just not mob rule.

• James Madison, Federalist 10:

  • Pure democracies are “spectacles of turbulence and contention.”

  • A republic “refines and enlarges the public view” through representation and scales across a large territory (factions check factions).

• Madison, Federalist 39:

  • A republic derives power from the people (directly or indirectly) and is administered by officers with limited terms or “good behavior.” Translation: elections and accountable institutions.

• Thomas Jefferson, 1801 Inaugural:

  • “The will of the majority… must be reasonable; the minority possess their equal rights, which equal law must protect.” That’s the republic’s promise in one sentence.

• John Adams (salty as ever):

  • “There never was a democracy yet that did not commit suicide.” He feared passion without law; he still endorsed republican self-government under a constitution.

Bottom line: They didn’t reject the people. They rejected unfiltered power. So they built filters—elections, bicameralism, federalism, judicial review, a Bill of Rights—to make freedom durable.

How the U.S. blends them, by design

Democratic inputs

• Universal adult suffrage (expanded over time).

• Frequent elections (House every 2 years; governors, legislators, school boards, sheriffs, judges in many states).

• Party primaries and ballot initiatives (many states) = bursts of direct democracy.

Republican architecture

• Written Constitution = supreme law (you can’t vote out the First Amendment on Tuesday).

• Separation of powers + checks & balances (no single actor can run the table).

• Independent judiciary (constitutional backstop against majority overreach).

• Federalism (50 state laboratories; national power limited and enumerated).

• Anti-majoritarian features (Senate equality among states; Electoral College; supermajorities for amendments and veto overrides).

Why it feels “slow”
That friction you hate? It’s intentional. It forces coalitions to be broader than 50% + 1, especially on fundamentals. The system prefers durable consent to momentary passion.

Common myths (and quick reality checks)

1. “We’re a republic, not a democracy.”
   Reality: We’re both. Democratic because the people authorize and replace their rulers through elections; republican because rulers (and voters) are bounded by higher law.

2. “Democracy = direct voting only.”
   Reality: Political science uses “democracy” to include representative systems. If you reserve “democracy” only for Athenian-style mass meetings, basically no country qualifies.

3. “Republics guarantee liberty; democracies don’t.”
   Reality: Titles lie (see the “Democratic People’s Republic of ___”). Liberty stems from constitutional limits, independent courts, and a liberty-minded civic culture—not the label on the letterhead.

4. “Majority support means a policy should be law.”
   Reality: Not if it violates the Constitution. To change a constitutional rule, you need supermajorities. That’s the point.

Where the rubber meets the road (modern illustrations)

• Flag burning: Broadly unpopular → still protected speech. The First Amendment beats a headcount.

• Civil rights: Local majorities supported segregation for decades; Brown v. Board and civil-rights statutes enforced the constitutional baseline.

• Ballot initiatives: Direct democracy lets states legalize marijuana or adopt tax caps—but federal/constitutional limits still apply.

• Electoral College & the Senate: Yes, they can frustrate national pluralities. They’re compromises aimed at federal balance and deliberation. You can reform them—but you’ll have to do it constitutionally (i.e., build supermajorities).

Global context (for perspective)

• United Kingdom: Highly democratic, not a republic (constitutional monarchy).

• France: A constitutional republic with strong democratic inputs (Fifth Republic).

• Switzerland: A republic that leans hard into direct democracy (frequent national referendums; Landsgemeinde in some cantons).

• Authoritarian “republics”: A cautionary tale—“republic” without free elections, rights, or rule of law is marketing, not constitutionalism.

The trade: speed vs. stability

• Pure democracy maximizes speed and participation, but risks whiplash and rights violations.

• Constitutional republicanism maximizes stability and rights protection, but slows policy velocity and can empower veto points.

America chooses stability with consent. It’s messier and slower, but it keeps your speech, your conscience, your property, and your vote out of reach of a single bad week of headlines.

Practical takeaways (civic muscle memory)

• If you want policy now, build coalitions big enough to clear constitutional and institutional thresholds.

• If you want to protect a right, defend the process that protects it: courts, due process, and the culture of constitutionalism.

• When institutions frustrate you, ask: Is this a bug or a designed brake? Often it’s the latter.

• Fixes that last are constitutional fixes. That means persuasion, not shortcuts.

Founder quotes to pocket

• Madison (Fed. 10): A republic “refines and enlarges the public views” via representation.

• Madison (Fed. 39): A republic derives powers “directly or indirectly from the great body of the people,” administered by officials for limited terms or “good behavior.”

• Jefferson (1801): “The will of the majority… must be reasonable; the minority possess their equal rights, which equal law must protect.”

• Adams: “There never was a democracy yet that did not commit suicide.” (His sledgehammer way of saying: passion without law is a dead end.)

• Franklin (apocryphal but apt): “A republic, if you can keep it.”

FAQ (because these always come up)

Isn’t the word “democracy” missing from the Constitution?
Yes. The Framers talked “republic.” But our entire electoral architecture is democratic in the representative sense, and the body politic has expanded the franchise relentlessly. We are a democratic republic by function, even if the word “democracy” isn’t in the parchment.

Doesn’t the Senate violate ‘one person, one vote’?
For the Senate, yes—by design (equal suffrage of states). The House reflects population; the Senate reflects federalism. You can change it only by amendment—and the Constitution entrenches state equality in the Senate. Translation: you’d need the states you’re disfavoring to agree. Good luck.

Courts vs. the People—who’s supreme?
The Constitution is supreme. Courts say what the law is in particular cases. The people remain sovereign because they can amend the Constitution (via supermajorities) and choose the elected officials who appoint/confirm judges.

Suggested further reading (starter pack)

• The Federalist Papers (esp. Nos. 10 and 39), Madison & Hamilton.

• John Locke, Second Treatise of Government (consent, majority rule, natural rights).

• Montesquieu, The Spirit of Laws (separation of powers, republican virtue).

• Alexis de Tocqueville, Democracy in America (majority power, civic associations, courts as a barrier to legislative excess).

• U.S. Constitution & Bill of Rights (Article IV’s Guarantee Clause; Amendments I–X; XIV).

Bottom Line

America works when we honor both sides of the hyphen: democratic-republic. Let elections speak. Let the Constitution bind. Keep majority rule healthy and minority rights untouchable. That’s the deal we struck in 1776. It’s still the only deal worth having.