http://www.sierratimes.com/03/05/09/greenslade.htm
Does Congress have the Constitutional Authority to Force you to get a Federal License to own a Handgun?
By Robert Greenslade
On January 7, 2003, Representative Rush Holt, Democrat from New Jersey, introduced the "Handgun Licensing and Registration Act of 2003" in the House of Representatives (HR 124 IH). The stated purpose of the legislation is "[t]o provide for the mandatory licensing and registration of handguns." This bill would institute a federal licensing and registration scheme when a State system did not meet the "requirements" outlined in the bill. Any person who did not comply with the provisions of this legislation would face a mandatory 15-year prison sentence in a federal reeducation facility. The prison sentence proposed by Congressman Holt is so draconian that it exceeds by 10 years the one imposed on German Jews in 1938 for not surrendering their firearms.
This proposed legislation is a showcase for the power hungry nature of federal politicians. These constitutionally challenged reprobates only care about the Constitution and system of government established by that document when they can manipulate it to their advantage. When these so-called "elected representatives" want to enact legislation not authorized by the Constitution, they either attack the Constitution as an out dated document or claim it is a living document that can be interpreted to fit the needs of modern society. It should come as no surprise that this bill is void of any reference to the constitutional provision that allegedly empowers Congress to enact the legislation in the first place.
In the author's opinion, this proposed legislation has numerous constitutional deficiencies. The first defect is the ex post facto component of the bill. Article 1, Section 9, Clause 3 of the Constitution prohibits the federal government from enacting ex post facto laws. An ex post facto law is one passed after the occurrence of a fact or the commission of an act. The "Handgun Licensing and Registration Act of 2003" would impose a 15 year prison term, and a Court cannot suspend the sentence of imprisonment or impose a probationary sentence, on any person "who owns, possesses, or controls a handgun in the State, and who has not completed training in firearms safety...is not licensed by the State to possess a handgun; or...has not registered the handgun with a Federal, State, or local law enforcement agency."
Under this legislation, if an individual lawfully purchased a handgun in a State before the enactment of this legislation, and the State did not have a handgun license and/or safety program required at the time of purchase, the individual, if he or she was still in possession of the firearm, could be charged with a federal crime under this bill. Fortunately for the American people, if the act of acquiring the handgun occurred before the enactment of this law, assuming it passes, any attempt to impose a federal registration and licensing requirement under threat of criminal sanctions would be an ex post facto law and unconstitutional. This is why most constitutionally astute legislators always include a "grandfather clause" in this type of legislation.
The second constitutional deficiency in this bill is the contention that the Constitution created a national government with unlimited legislative authority throughout the United States. In reality, the States, when they adopted the Constitution, established a federal government of limited enumerated powers. James Madison, who is recognized as the father of the Constitution, expressed this principle in Federalist essay No. 14:
t is to be remembered that the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects...
When the Constitution was written and adopted, the people of the several States had the right to possess a firearm. Before the federal government could have the general power to control this right within the several States, the Constitution would first have to grant the federal government a regulatory or police power relative to the right. In other words, since the federal government's jurisdiction is "limited to certain enumerated objects," is the regulation of firearms and firearms owners, within the several States, inside the scope of these limited enumerated powers? Or, in the words of Richard Henry Lee of Virginia during that State's debates on the proposed constitution"s it enumerated in the Constitution?"
In Federalist essay No. 45, James Madison indirectly answered this question when he distinguished the external powers delegated to the federal government from the domestic powers reserved to the States:
The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people; and the internal order, improvement, and prosperity of the State.
As stated by Madison, a separation of powers exists between the two governments. Since the powers reserved to the States concern all the objects that concern the lives of the people and the internal order of a State, any general handgun-licensing requirement, as proposed by Congressman Holt, is outside the scope of the limited powers delegated to the federal government.
It should be noted that the legal definition of a license is permission from government to do something that would otherwise be illegal. A license is synonymous with a government granted privilege. If you read between the lines, Congressman Holt is asserting that the possession of a handgun is a government granted privilege, not a right, and the federal government is the ultimate arbitrator of the guidelines for exercising this so-called privilege within the several States.
Before the federal government could constitutionally acquire a licensing power, it must first have been granted a general legislative power relative to the activity or individual it seeks to regulate. Have you ever wondered why you don't have to register your car with the federal government or secure a federal drivers license to operate a motor vehicle within a State? The answer is simple. The federal government lacks jurisdiction. It was never granted any general police power within the several States. The same principle applies to firearms. Since the federal government lacks the constitutional authority to penetrate the sovereignty of a State and license the operator of a motor vehicle, where would it get the general authority to register and license the possession of a handgun?
The third constitutional defect in this bill is the arrogant assertion that Congress has the constitutional authority to enact a federal law when a member of that body does not approve of the internal operation of a State. Since the States do not derive their powers from the federal government, the internal operation of a State is not a federal matter or within the scope of the limited powers delegated to the federal government. It may come as a shock to Congressman Holt, but the Constitution is a compact or contract between the several States. Under the system of government created by the constitutional compact between the States, the States are the principles and the federal government is their agent. The agent derives its powers from the principles - the principles do not derive their powers from the agent. In fact, the States have the constitutional authority, through the amendment process outlined in Article V of the Constitution, to modify, restrict or abolish the powers of the federal government. However, the federal government does not have the constitutional authority to infringe, restrict or abolish the powers of the several States. In reality, the federal government exists at the pleasure of the States, not visa versa. Thus, any assertion that Congress can enact this law because it is supreme and above the States is specious at best.
The federal government only exists within the confines of the limited powers delegated to it by the States. Under this system of government, every power not granted to the agent was retained by the principles irrespective of the Tenth Amendment. Congressman Holt would have us believe that the States are a child or dependent of the federal government and subject to its dictates at any moment. Not only does Congress lack the constitutional authority to impose a general registration and licensing scheme on the people of the several States relative to the private ownership of a handgun, but it also lacks the authority to displace the powers of the States and tell them how to conduct their internal affairs.
Note: the ultimate deficiency in this proposed legislation is the fact that the American people, as comprising one nation, are not a party to the Constitution. For a detailed overview of this subject, read the following 3 part article, Do the Constitution and the Powers of the Federal Government Pertain to You?
Does Congress have the Constitutional Authority to Force you to get a Federal License to own a Handgun?
By Robert Greenslade
On January 7, 2003, Representative Rush Holt, Democrat from New Jersey, introduced the "Handgun Licensing and Registration Act of 2003" in the House of Representatives (HR 124 IH). The stated purpose of the legislation is "[t]o provide for the mandatory licensing and registration of handguns." This bill would institute a federal licensing and registration scheme when a State system did not meet the "requirements" outlined in the bill. Any person who did not comply with the provisions of this legislation would face a mandatory 15-year prison sentence in a federal reeducation facility. The prison sentence proposed by Congressman Holt is so draconian that it exceeds by 10 years the one imposed on German Jews in 1938 for not surrendering their firearms.
This proposed legislation is a showcase for the power hungry nature of federal politicians. These constitutionally challenged reprobates only care about the Constitution and system of government established by that document when they can manipulate it to their advantage. When these so-called "elected representatives" want to enact legislation not authorized by the Constitution, they either attack the Constitution as an out dated document or claim it is a living document that can be interpreted to fit the needs of modern society. It should come as no surprise that this bill is void of any reference to the constitutional provision that allegedly empowers Congress to enact the legislation in the first place.
In the author's opinion, this proposed legislation has numerous constitutional deficiencies. The first defect is the ex post facto component of the bill. Article 1, Section 9, Clause 3 of the Constitution prohibits the federal government from enacting ex post facto laws. An ex post facto law is one passed after the occurrence of a fact or the commission of an act. The "Handgun Licensing and Registration Act of 2003" would impose a 15 year prison term, and a Court cannot suspend the sentence of imprisonment or impose a probationary sentence, on any person "who owns, possesses, or controls a handgun in the State, and who has not completed training in firearms safety...is not licensed by the State to possess a handgun; or...has not registered the handgun with a Federal, State, or local law enforcement agency."
Under this legislation, if an individual lawfully purchased a handgun in a State before the enactment of this legislation, and the State did not have a handgun license and/or safety program required at the time of purchase, the individual, if he or she was still in possession of the firearm, could be charged with a federal crime under this bill. Fortunately for the American people, if the act of acquiring the handgun occurred before the enactment of this law, assuming it passes, any attempt to impose a federal registration and licensing requirement under threat of criminal sanctions would be an ex post facto law and unconstitutional. This is why most constitutionally astute legislators always include a "grandfather clause" in this type of legislation.
The second constitutional deficiency in this bill is the contention that the Constitution created a national government with unlimited legislative authority throughout the United States. In reality, the States, when they adopted the Constitution, established a federal government of limited enumerated powers. James Madison, who is recognized as the father of the Constitution, expressed this principle in Federalist essay No. 14:
t is to be remembered that the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects...
When the Constitution was written and adopted, the people of the several States had the right to possess a firearm. Before the federal government could have the general power to control this right within the several States, the Constitution would first have to grant the federal government a regulatory or police power relative to the right. In other words, since the federal government's jurisdiction is "limited to certain enumerated objects," is the regulation of firearms and firearms owners, within the several States, inside the scope of these limited enumerated powers? Or, in the words of Richard Henry Lee of Virginia during that State's debates on the proposed constitution"s it enumerated in the Constitution?"
In Federalist essay No. 45, James Madison indirectly answered this question when he distinguished the external powers delegated to the federal government from the domestic powers reserved to the States:
The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people; and the internal order, improvement, and prosperity of the State.
As stated by Madison, a separation of powers exists between the two governments. Since the powers reserved to the States concern all the objects that concern the lives of the people and the internal order of a State, any general handgun-licensing requirement, as proposed by Congressman Holt, is outside the scope of the limited powers delegated to the federal government.
It should be noted that the legal definition of a license is permission from government to do something that would otherwise be illegal. A license is synonymous with a government granted privilege. If you read between the lines, Congressman Holt is asserting that the possession of a handgun is a government granted privilege, not a right, and the federal government is the ultimate arbitrator of the guidelines for exercising this so-called privilege within the several States.
Before the federal government could constitutionally acquire a licensing power, it must first have been granted a general legislative power relative to the activity or individual it seeks to regulate. Have you ever wondered why you don't have to register your car with the federal government or secure a federal drivers license to operate a motor vehicle within a State? The answer is simple. The federal government lacks jurisdiction. It was never granted any general police power within the several States. The same principle applies to firearms. Since the federal government lacks the constitutional authority to penetrate the sovereignty of a State and license the operator of a motor vehicle, where would it get the general authority to register and license the possession of a handgun?
The third constitutional defect in this bill is the arrogant assertion that Congress has the constitutional authority to enact a federal law when a member of that body does not approve of the internal operation of a State. Since the States do not derive their powers from the federal government, the internal operation of a State is not a federal matter or within the scope of the limited powers delegated to the federal government. It may come as a shock to Congressman Holt, but the Constitution is a compact or contract between the several States. Under the system of government created by the constitutional compact between the States, the States are the principles and the federal government is their agent. The agent derives its powers from the principles - the principles do not derive their powers from the agent. In fact, the States have the constitutional authority, through the amendment process outlined in Article V of the Constitution, to modify, restrict or abolish the powers of the federal government. However, the federal government does not have the constitutional authority to infringe, restrict or abolish the powers of the several States. In reality, the federal government exists at the pleasure of the States, not visa versa. Thus, any assertion that Congress can enact this law because it is supreme and above the States is specious at best.
The federal government only exists within the confines of the limited powers delegated to it by the States. Under this system of government, every power not granted to the agent was retained by the principles irrespective of the Tenth Amendment. Congressman Holt would have us believe that the States are a child or dependent of the federal government and subject to its dictates at any moment. Not only does Congress lack the constitutional authority to impose a general registration and licensing scheme on the people of the several States relative to the private ownership of a handgun, but it also lacks the authority to displace the powers of the States and tell them how to conduct their internal affairs.
Note: the ultimate deficiency in this proposed legislation is the fact that the American people, as comprising one nation, are not a party to the Constitution. For a detailed overview of this subject, read the following 3 part article, Do the Constitution and the Powers of the Federal Government Pertain to You?
