Image for post
Image for post
Illustration copyright © 2018 Bill Cawthon

Alexander Pope wrote: “A little learning is a dangerous thing;
drink deep, or taste not the Pierian spring: there shallow draughts intoxicate the brain, and drinking largely sobers us again.”

The real lesson of the day is Ms. Baker exhibiting the danger of a little learning. She really needs to go back to the “Pierian spring” and start guzzling. She might even need a bucket.

If she were to do so, she would no doubt learn about Supreme Court Chief Justice Morrison Waite’s writing in United States v. Cruikshank (92 U.S. 542). Waite wrote of the right protected by Second Amendment: “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.”

She would also learn that in all the examples cited by Associate Justice James McReynolds in United States v. Miller (307 U.S. 174), the militias in colonial America had consisted of citizens armed with personally owned weapons. While some of those militias had rules about what weapons that citizens eligible to be called for militia duty must possess, there were never any restrictions on the types of weapons they could possess. Americans were free to buy any and all the weapons their purse could afford, including firearms, edged weapons, and even cannons.

The history of a militia being composed of citizens with personally owned weapons goes back more than 1,100 years to the reign of Alfred the Great in the Ninth Century. By 1181, King Henry I had decreed that all able-bodied males were to possess certain specific types of weapons and that those weapons could not be pledged as surety for a loan (i.e., pawned). This was more than 600 years before the Second Amendment was drafted.

Incidentally, Ms. Baker’s last paragraph is a hoot. I couldn’t believe any adult with any knowledge whatsoever of American history could say: “The lesson for today is that the idea of individual rights to gun ownership did not exist when the Constitution was written. That right was not supported, promoted or upheld by the Founders or the judiciaries of their time.”

Really? George Washington and George Mason were gun collectors; Alexander Hamilton was very proud of the set of pistols that had been presented to him by his father-in-law; James Madison boasted that he could hit a small target at 100 yards; Thomas Jefferson was what might be called a “gun nut” today.

Richard Henry Lee, writing as the Federal Farmer, said: “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….”

Who was licensed in 1938? The Federal Firearms Act of 1938 established restrictions on the interstate trade in firearms. It said that firearm dealers, distributors, and manufacturers were the only ones that could engage in interstate commerce and that they had to obtain a federal license to engage in their respective businesses. Incidentally the Federal Firearms Act of 1938 contained the original prohibition on the possession of firearms by convicted felons and those who had been officially pronounced mentally unfit.

Ms. Baker really needs to go back and read the late Antonin Scalia’s entire opinion in District of Columbia v. Heller (544 U.S. 570). She might find this as useful as Pope’s Pierian spring. Among other things, she would discover that Scalia never said “(t)he original and commonly accepted interpretation of the Second Amendment was that only those males called to serve as militia were entitled to own guns.” In fact, Scalia said exactly the opposite — at great length.

Justice Taney’s opinion in Dred Scott v. Sandford (60 U.S. 393) did not establish an individual right to keep and bear arms. It affirmed that such a right existed and denied it to Scott based on his status as a black slave. Scott was denied any of the rights of an American citizen because he was not considered to be an American citizen.

The Baker Follies continue with her “expert” analysis of the protests in Washington state.

The towns and law enforcement officers are doing something that they are perfectly within their rights to do: They are refusing to enforce a federal or state law.

Writing in the Federalist #46 (the same issue that is the source of the quote at the top of the page), James Madison said: Should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps refusal to cooperate with officers of the Union, the frowns of the executive magistracy of the State; the embarrassment created by legislative devices, which would often be added on such occasions, would oppose, in any State, very serious impediments; and were the sentiments of several adjoining States happen to be in Union, would present obstructions which the federal government would hardly be willing to encounter.”

The U.S. Supreme Court has confirmed the sentiment expressed by not only by James Madison, but by Thomas Jefferson, and Daniel Webster.

Three decisions rendered since 1842 have said the federal government cannot compel a state or any state official to enforce a federal law. This “anti-commandeering” doctrine also applies to the states.

It all began with Prigg v. Pennsylvania (41 U.S. 539), in which Justice Joseph Story wrote: “The fundamental principle applicable to all cases of this sort, would seem to be, that where the end is required, the means are given; and where the duty is enjoined, the ability to perform it is contemplated to exist on the part of the functionaries to whom it is entrusted. The clause is found in the national Constitution, and not in that of any state. It does not point out any state functionaries, or any state action to carry its provisions into effect. The states cannot, therefore, be compelled to enforce them; and it might well be deemed an unconstitutional exercise of the power of interpretation, to insist that the states are bound to provide means to carry into effect the duties of the national government, nowhere delegated or instrusted to them by the Constitution.

Fast forward from 1842 to 1992 and the case of New York v. United States (505 U.S. 144) when Justice Sandra Day O’Connor wrote the majority opinion. “As an initial matter,” Justice O’Conner wrote. “Congress may not simply ‘commandeer’ the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.”

She went on to say: “While Congress has substantial powers to govern the Nation directly, including in areas of intimate concern to the States, the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions.”

When the Brady Act was passed it contained a requirement that county sheriffs to administer a portion of the background check program. Sheriffs Jay Printz and Richard Mack sued, saying the federal government had no authority to compel them administer a federal program.

The Supreme Court agreed and Justice Scalia wrote the majority opinion.

“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program.

“Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case-by-case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”

The case was Printz v. United States (521 U.S. 898) and it was decided in 1997. The requirement was ruled unconstitutional.

As of today, this is what the Second Amendment Sanctuary movement looks like in the U.S.

Image for post
Image for post
Illustration copyright © 2019 Bill Cawthon

See all that green? Both Chief Culp and Chief Morningstar have lots of company. Over half the counties in Washington state are Second Amendment sanctuaries.

It’s important to understand that these counties and cities are not defying the law. They are saying that they will not allow the use of their funds, assets or personnel to enforce these laws. If the state or federal government wants to come in on their own dime and enforce the law, local officials will not stop them. However, local resources will not be available to these state or federal officers.

I examined Ms. Baker’s sources. I have already read the decisions in District of Columbia v. Heller, McDonald v. City of Chicago, United States v. Miller, United States v. Cruickshank, etc., a number of times. I had also seen the interview with Chief Culp.

I was quite interested in Sarah Peck’s analysis for the Congressional Research Service though I am at a loss to understand she assertion that lower courts had generally held a collective-rights view of the Second Amendment. Nothing that I have read would indicate that such a view was common. In fact, the right of individuals to keep and bear arms has been a fairly constant standard through American history.

The one thing that is clear from Ms. Peck’s analysis is that the current hodgepodge of conflicting jurisprudence is the result of the Supreme Court’s reluctance to get involved with Second Amendment cases since McDonald. Perhaps when the arguments begin in New York State Rifle and Pistol Association v. City of New York early next month, we will start to see some much-needed clarification, especially in regards to licensure and whether open carry is a constitutionally protected right, as was ruled in the Court of Appeals for the Ninth Judicial District.

I believe that the focus on Scalia’s limitations on the right to keep and bear arms has twisted his intentions.

Describing the tug or war between the Federalist and anti-Federalists, Scalia wrote: “The debate with respect to the right to keep and bear arms, as with other guarantees in the Bill of Rights, was not over whether it was desirable (all agreed that it was) but over whether it needed to be codified in the Constitution.”

In the next paragraph, Scalia writes: “It is therefore entirely sensible that the Second Amendment ’s prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right — unlike some other English rights — was codified in a written Constitution. Justice Breyer’s assertion that individual self-defense is merely a “subsidiary interest” of the right to keep and bear arms, see post, at 36, is profoundly mistaken. He bases that assertion solely upon the prologue — but that can only show that self-defense had little to do with the right’s codification; it was the central component of the right itself. (Emphasis is Scalia’s).

A lot has been made of Scalia’s statement “Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” But very seldom (like never) does anyone mention what Scalia wrote at the end of that same paragraph. “Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment , nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” (my emphasis)

This is where Scalia tied Heller to the Federal Firearm Act of 1938 and the Gun Control Act of 1968, which replaced the earlier law. Sales of firearms by those in the business of selling firearms can be regulated. The corollary to that is that non-commercial sales, i.e., private, intrastate sales between two individuals, are not subject to regulation by the federal government.

I asked noted Second Amendment authority Stephen Halbrook, an attorney who has successfully argued Second Amendment cases before the Supreme Court, whether the Bipartisan Background Checks Act of 2019 was unconstitutional on the basis the Congress was exceeding its authority under the Commerce Clause and he informed me that the act was “facially” unconstitutional meaning that the whole thing was flawed.

By the way, Stephen Halbrook is sufficiently well-respected that his writings were used as references in both Heller and McDonald.

I find it odd that the only thing Ms. Baker found worthwhile in the 51 pages of the McDonald opinion was a quote from Scalia’s opinion in the Heller case. That’s a shame because Scalia’s concurring opinion in McDonald is a hoot, especially when he dissects the dissent authored by the late Justice John Paul Stevens. Justice Clarence Thomas’s lengthy concurring opinion, which dealt at length with his reasons for wanting the rights protected by the Second Amendment to be treated as being among the privileges and immunities of the America citizen instead of a due process consideration, is also enlightening.

As she was wrong about everything else, let’s not forget to correct Ms. Baker on one last point: In the late 1800s, a horse was about $60; I couldn’t find a barn price, but a house was going to set you back a few hundred dollars. A brand-new Colt Lightning revolver had a list price of $15, a Smith & Wesson Model 3 Schofield ran about $17-$18. A Winchester Model 1873 rifle was $50 when it was introduced but the prices fell quickly. But most people had older rifles and handguns which were in plentiful supply, especially after the Civil War. Prices were quite low for second-hand firearms: $5 would have you a functional shootin’ iron.

And nobody thought that the Second Amendment protected a collective right.

Those who won’t learn history are doomed to repeat it: Often in summer school.

Professional writer. Passionately interested in facts. Founder of onewordtexas.org

Get the Medium app

A button that says 'Download on the App Store', and if clicked it will lead you to the iOS App store
A button that says 'Get it on, Google Play', and if clicked it will lead you to the Google Play store