MK3 BLOG

MK3|MK3Blog|Oct. 01, 2025

WASHINGTON, D.C. — In a landmark case rolling back federal environmental protections, the US Supreme Court issued an opinion for Indiana v. EPA (2024) that ruled the Environmental Protection Agency as unconstitutional, as it didn’t exist in its current state nor did it have a direct precursor at the country’s founding in 1776. The EPA was created under President Nixon during a period of heightened scrutiny for the deleterious effects 20th-century industrial development was having on American waterways and air. Since then, the agency has been tasked with making sure the environmental rights of Americans are protected through the adoption of emissions and contamination standards. 

The case Indiana v. EPA centered on a recent rule proposed by the EPA under President Biden, known as the Good Neighbor Rule, which required states that were upwind of other states to adopt tighter emissions regulations for energy drilling and production to protect downwind states. Several states sued over the legitimacy of the rule, which were all consolidated under Indiana’s case to SCOTUS. Although legal experts largely predicted that the Court, which has been increasingly skeptical of environmental protections in the past decade, would rule against the EPA, few expected the Court to go one step further and disabuse the entire agency altogether. Leading the 6-3 majority on ideological lines, Justice Alito wrote that “it was high time that this Court stop stepping around the EPA with piecemeal rollbacks and address the agency as a whole altogether.” 

The opinion went on to reflect on the historical tradition of the country, pointing out how none of the Federalist Papers made any mention of the Founding Fathers wanting the government “to halt the development of industry with burdensome regulation,” and that therefore, there was no legitimate authority Congress exercised when it created the organization with the National Environmental Policy Act of 1969. At press time, Chief Justice Roberts filed a concurring opinion clarifying that the Indiana v. EPA opinion was “highly specialized to this case…and should not be taken as a binding legal precedent with regards to other federal agencies.” 

Source: Substack

MK3|MK3Blog|Oct. 19, 2025

IN CONGRESS, JULY 4, 1776

The unanimous Declaration of the thirteen united States of America

When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected, whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.

He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

He has affected to render the Military independent of and superior to the Civil Power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

For quartering large bodies of armed troops among us:

For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States:

For cutting off our Trade with all parts of the world:

For imposing Taxes on us without our Consent:

For depriving us in many cases, of the benefit of Trial by Jury:

For transporting us beyond Seas to be tried for pretended offences:

For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies

For taking away our Charters, abolishing our most valuable Laws and altering fundamentally the Forms of our Governments:

For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

He has abdicated Government here, by declaring us out of his Protection and waging War against us.

He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.

He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. — And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor. 

MK3|MK3Blog| Oct. 18, 2025

“An Act Against the Constitution is Void”

The American Revolution kicked off in 1761 with a single principle from James Otis Jr.: an unconstitutional law is NO LAW AT ALL.

Any government act exceeding its legitimate authority is void the moment it is passed. It has no more legal power than a law passed by a foreign government.

Call it what it is: usurpation, a theft of power. And stolen power is not to be obeyed, it is to be resisted.

HIERARCHY OF POWER

Government possesses no inherent power. It is a created agent, and as George Mason explained, any authority it holds comes from its boss: the people.

“All power was originally lodged in, and consequently is derived from, the people.”

The people didn’t just hand government a blank check. As John Jay made clear, they gave it the Constitution: a strict, enumerated list of what it is authorized to do.

“The proposed government is to be the government of the people; all its officers are to be their officers, and to exercise no rights but such as the people commit to them.”

This was so essential to the structure of the constitution they made it explicit with the Tenth Amendment, which Thomas Jefferson called the foundation of the entire system.

“I consider the foundation of the Constitution as laid on this ground: That ‘all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people.’”

James Wilson then locked in this hierarchy of power: the people at the top, the Constitution as their instructions, and the government at the bottom.

“As our constitutions are superior to our legislatures; so the people are superior to our constitutions.”

USURPATION

That hierarchy reveals the crime. Thomas Paine distinguished legitimate, delegated authority from theft.

“All delegated power is trust. All assumed power is usurpation.”

Usurpation, by definition, is an exercise of unauthorized power. In essence, stealing power from those who rightly hold it, the people. A common dictionary definition of the era came from Thomas Sheridan’s 1789 A Complete Dictionary of the English Language:

“Forcible, unjust, illegal seizure or possession.” 

A usurper is “One who seizes or possesses that to which he has no right.”

The Declaration of Independence demonstrates this view. Most people today refer to the list of charges against the king as “grievances.” But that word isn’t even in the document.

Instead, the founders used phrases like “A long train of abuses and usurpations” and “a history of repeated injuries and usurpations” to define their opposition to unconstitutional powers like the Stamp Act, the Declaratory Act, the Coercive Acts and so much more.

VOID

Usurpation justified a revolution, secession, and a long war for Independence. But the Founders knew any government could be just as dangerous. James Iredell issued the same warning against their own.

“Any law not warranted by the Constitution is a barefaced usurpation.”

St. George Tucker broadened it beyond just legislation to any exercise of power beyond constitutional limits.

“Every extension of the administrative authority beyond its just constitutional limits, is absolutely an act of usurpation.”

This is the legal doctrine of void ab initio. It’s a legal nullity from the beginning, and never rises to the level of law, and 3rd Chief Justice Oliver Ellsworth applied that principle to the constitution.

“If they make a law which the Constitution does not authorize, it is void.”

As James Wilson made clear, this means government has no legal authority to enforce such acts.

“That a void act can confer no authority upon those, who proceed under colour of it, is a self evident proposition.”

In the Kentucky Resolutions of 1798, Thomas Jefferson took no prisoners. A usurpation of power – an unconstitutional law – is no law at all.

“Whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force.”

Even Alexander Hamilton took this position on the supremacy clause. Only acts in pursuance of delegated constitutional powers are supreme.

“But it will not follow from this doctrine that acts of the large society which are NOT PURSUANT to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land.”

PUTTING IT INTO PRACTICE

The obvious objection to all this: government doesn’t care about theory or constitutional principles. They’ll do what they want anyway.

Hamilton continued with the practical application – acts beyond the limits of the constitution don’t stop themselves.

“These will be merely acts of usurpation, and will deserve to be treated as such.”

Complying with stolen power just encourages more theft. That’s why James Iredell explained that a free people would resist any such acts.

“The people will resist if government usurps power not delegated to it.”

Roger Sherman explained how that works in a union of states under the Constitution.

When the people refuse to comply, and the states back them up, there’s not much the feds can do to shove their so-called “laws,” regulations and orders down our throats.

“All acts of the Congress not warranted by the constitution would be void. Nor could they be enforced contrary to the sense of a majority of the States.”

That’s constitutional enforcement in action: people refuse, states end enforcement, federal overreach fails.

James Otis helped launch the Revolution on one foundational principle: unconstitutional acts do not rise to the level of “law.” The fiery Anti-Federalist Luther Martin tied it all together: When government steals unauthorized power, resistance is duty.

“By the principles of the American revolution, arbitrary power may and ought to be resisted.”

MK3|Sep. 5,2025

“Who are the militia? They consist now of the whole people.” 

George Mason cut to the heart of it: the militia was not a government creation, but the people themselves.

That simple truth has been twisted, ignored, or totally forgotten.

Say the word “militia” today and most people look at you like you’re a fringe nutcase. But the founding generation saw it differently. They viewed a well-armed and well-trained people as the backbone of liberty, the essential security of a free republic.

The Constitution’s militia clauses were supposed to secure that principle. The Anti-Federalists warned they would do the opposite – and time has proven them right.

CITIZEN MILITIA VS. STANDING ARMY

This story really begins with a principle most Americans have forgotten, and most were never even taught: the choice between a citizen militia and a permanent professional standing army.

Henry Knox, Washington’s Secretary of War, reinforced this: in a free society, the ultimate safeguard had to be an armed people, themselves.

“An energetic national militia is to be regarded as the Capital security of a free republic; and not a standing army, forming a distinct class in the community.”

That view was widespread because almost the entire founding generation viewed standing armies, especially large permanent ones, as one of the greatest dangers to liberty. A perfect example of this view came from the great revolutionary war hero Joseph Warren.

“It is further certain, from a consideration of the nature of mankind, as well as from constant experience, that standing armies always endanger the liberty of the subject.”

The same warning carried forward to the ratification debates over the Constitution. “A Democratic Federalist,” possibly Samuel Bryan, pointed to the long record of history. From every angle, the conclusion was the same: a standing army was the single greatest danger.

“The experience of past ages, and the result of the enquiries of the best and most celebrated patriots have taught us to dread a standing army above all earthly evils.”

And Tench Coxe drove the distinction home. A militia of the people worked for the people, defending their own freedom. A professional army was nothing but the tool of those in power. And people in power always find ways to use that power for the worst.

“There is a wide difference between the troops of such a commonwealth as ours, founded on equal and unalterable principles, and those of a regal government, where ambition and oppression are the profession of the king. In the first case, a military officer is the occasional servant of the people, employed for their defence; in the second, he is the ever ready instrument to execute the schemes of conquest or oppression, with which the mind of his royal master may be disturbed.”

MILITIA IN THE CONSTITUTION

James Madison tied the whole question of liberty to the militia itself. What others had warned about in theory, he pressed as a principle to be written into the Constitution itself.

“As the greatest danger to liberty is from large standing armies, it is best to prevent them, by an effectual provision for a good Militia.”

Tench Coxe tied those principles together into one clear doctrine. The militia was the people themselves, and he affirmed Madison’s view that they made a standing army unnecessary.

“The militia, who are in fact the effective part of the people at large, will render many troops quite unnecessary.”

He explained why. An armed population, by sheer numbers, could act as a check on regular troops, because the geographic situation of the country meant there would seldom be many of them in the first place.

“They will form a powerful check upon the regular troops, and will generally be sufficient to overawe them – for our detached situation will seldom give occasion to raise an army, though a few scattered companies may often be necessary.”

The framers sought to write these principles into the Constitution, where the word “militia” is included six times.

Article II, Section 2 made the president commander in chief not only of the army and navy, but also of the militia of the several states when called into the actual service of the United States.

Article I, Section 8, Clause 15 explained when that could happen. Congress could provide for calling forth the militia only in three situations: “to execute the Laws of the Union, suppress Insurrections and repel Invasions.” Clause 16 delegated to Congress the power to “provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States.”

That last power would become the heart of the coming debate.

The Bill of Rights added two more mentions of the word militia. The Fifth Amendment exempted cases “arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger.”

The Second Amendment put the principle beyond dispute, tying the people’s right to arms directly to the survival of a free state.

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

THE BIG DEBATE

During the ratification debates, there was strong opposition to giving Congress power to organize, arm, and discipline the militia. As Federal Farmer wrote, the starting point was clear: liberty required the great mass of the people themselves to remain armed.

“To preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them”

Patrick Henry pressed the point even harder. Liberty could not be secured by a portion of the people.

“The great object is, that every man be armed”

That demand ran headlong into Alexander Hamilton’s approach. He began by acknowledging the opposition’s concern that federal power over the militia could be used to form a select corps, loyal to government instead of the people.

“By a curious refinement upon the spirit of republican jealousy, we are even taught to apprehend danger from the militia itself, in the hands of the federal government. It is observed that select corps may be formed, composed of the young and ardent, who may be rendered subservient to the views of arbitrary power.”

Hamilton then made his own claim. A general militia, he said, was not the safeguard of liberty but an impractical and dangerous burden.

“The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution.”

In one stroke he dismissed the idea that ordinary citizens should give their time and effort to arms and training, calling such effort a nuisance to be avoided.

“To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss.”

THE SELECT MILITIA

The Anti-Federalists repeatedly warned that any plan allowing a “select corps,” or what they called a “select militia,” could be extremely dangerous. In Pennsylvania, John Smilie warned that this would, in practice, be a standing army.

“Congress may give us a select militia which will, in fact, be a standing army”

And if men hostile to liberty gained power, they would have every reason to cripple the one institution that could resist them. That meant abolishing the general militia altogether.

“Or – Congress, afraid of a general militia, may say there shall be no militia at all.”

Either way, the stage would be set for the ultimate danger.

“When a select militia is formed; the people in general may be disarmed.”

George Mason explained how easily this could happen. Congress would not need to seize weapons outright. It could let the militia wither through neglect.

“The militia may be here destroyed by that method which has been practised in other parts of the world before. That is, by rendering them useless, by disarming them. Under various pretences, Congress may neglect to provide for arming and disciplining the militia, and the State Governments cannot do it, for Congress has an exclusive right to arm them”

But Mason saw something even more sinister -what if this wasn’t accidental neglect, but the whole point?

“Should the national Government wish to render the militia useless, they may neglect them, and let them perish, in order to have a pretence of establishing standing army”

Even Hamilton conceded that the scope of power was wide open. No one could predict what Congress might choose to do.

“What plan for the regulation of the militia may be pursued by the national government, is impossible to be foreseen”

Mason brought the issue back to first principles. In 1788, there was no ambiguity –  the militia still meant the people themselves – all of them.

“I ask who are the militia? They consist now of the whole people, except a few public officers.”

Mason drove it home with a warning that would prove to be prophetic. To grant Congress control over organizing, arming, and disciplining the militia was to guarantee a select militia – and with it, every danger the Anti-Federalists had warned against.

“But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor; but may be confined to the lower and middle classes of the people, granting exclusion to the higher classes of the people. If we should ever see that day, the most ignominious punishments and heavy fines may be expected.”

THE PUSH FOR AMENDMENTS

This fear of Congress neglecting the militia, or even disarming the people and leaving only a select corps, was a driving force behind the push for amendments.

At Virginia’s ratifying convention, they proposed one in unmistakable terms:

“That the people have a right to keep and bear arms; that a well regulated Militia composed of the body of the people trained to arms is the proper, natural and safe defence of a free State.”

New York, North Carolina, and Rhode Island all ratified with nearly the same recommended amendment.

Years later, Thomas Jefferson recalled just how urgent the issue had been. From Europe, he pressed James Madison for amendments to guarantee that the Constitution itself would help prevent that great threat to liberty – a standing army – by securing the militia.

“I wrote strongly to mr Madison urging the want of provision for the freedom of religion, freedom of the press, trial by jury, habeas corpus, the substitution of militia for a standing army, and an express reservation to the states of all rights not specifically granted to the union.”

THE WARNING CAME TRUE

Remember George Mason’s warning about Congress turning the militia into a narrow class, while exempting those with the greatest means? A century later, that prediction became law.

The Militia Act of 1903, what most people today call the Dick Act, narrowed the definition of the militia from “the whole people” to a specific segment of the people.

“The militia shall consist of every able-bodied male citizen of the respective States, Territories, and the District of Columbia, and every able-bodied male of foreign birth who has declared his intention to become a citizen, who is more than eighteen and less than forty-five years of age”

From there the Act went even further, creating the very “select militia” Mason and the Anti-Federalists had warned would destroy liberty.

“And shall be divided into two classes, the organized militia, to be known as the National Guard of the State, Territory, or District of Columbia … and the remainder to be known as the Reserve Militia.”

And then, of course – to ensure it’s just like the standing army we were warned about, Congress ensured that politicians were completely exempt.

“That the Vice-President of the United States, the officers, judicial and executive, of the Government of the United States, the members and officers of each House of Congress … shall be exempted from militia duty, without regard to age”

THE ONE-TWO PUNCH

The militia was, and always will be, the people themselves.

But just as the Anti-Federalists warned, once Congress was given the power to organize, arm, and discipline only part of the militia, the results were inevitable.

Today we live with the one-two punch they predicted:

1. A select militia – the National Guard – is treated as nothing more than an arm of the permanent standing army.
2. Tens of millions of Americans are not armed today.

Source in part: https://tenthamendmentcenter.com/  

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.