From the May 1998 Idaho Observer:
by Doug Fiedor
Here's a quick question for all you Constitutional scholars: Which of the enumerated powers authorized to the federal government are described in the Bill of Rights?
None, of course. All powers (except tax and alcohol) given the federal government by the Constitution of the United States are listed in the body of the Constitution. The Second Amendment, then, is something else.
When we have a doubt of the exact meaning of sections of the Constitution, the Supreme Court instructs that we should look to The Federalist Papers for clarification. In Cohens v. Virginia the Court said:
"Its intrinsic merit entitles it to this high rank (as a complete commentary on the Constitution), and the part its authors performed in framing the Constitution put it very much in their power to explain the views with which it was framed."
Since then, the Federalist Papers have been quoted liberally as an authority in many court opinions.
In The Federalist #84, Alexander Hamilton gives his opinion on why a bill of rights was not really needed:
"I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?"
Indeed. Why declare that things shall not be done which there is no power to do? And, there is no power to regulate private firearms.Yet, many people wanted this declaration of rights added to the Constitution. The promise to do so was made so as to get the Constitution ratified. And the rest is history.
It is also enlightening to read what the Representative from Virginia, James Madison, said to the first House of Representatives as he proposed the Bill of Rights. Here is part of that speech:
"It has been said, by way of objection to a bill of rights, by many respectable gentlemen out of doors, and I find opposition on the same principles likely to be made by gentlemen on this floor, that they are unnecessary articles of a Republican Government, upon the presumption that the people have those rights in their own hands, and that is the proper place for them to rest. It would be a sufficient answer to say, that this objection lies against such provisions under the State Governments, as well as under the General Government; and there are, I believe, but few gentlemen who are inclined to push their theory so far as to say that a declaration of rights in those cases is either ineffectual or improper.
It has been said, that in the federal government they are unnecessary, because the powers are enumerated, and it follows, that all that are not granted by the Constitution are retained; that the Constitution is a bill of powers, the great residuum being the rights of the people; and, therefore, a bill of rights cannot be so necessary as if the residuum was thrown into the hands of the Government."
Got that? "The people have those rights in their own hands, and that is the proper place for them to rest."
Later, he says that, "all (powers) that are not granted by the Constitution are retained" by the people.
If the federal government had the power to regulate personal firearms, it would be one of the powers listed in the body of the Constitution, not in the Bill of Rights. And, since there is no such power granted, the right to keep and bear arms completely and unequivocally belongs to the people. Personal arms may, however, be regulated by State government.
The Second Amendment, then, is no more than a declaration that that people already have the right to keep and bear arms. So, what would the Founding Fathers say about the abuse of power by the federal government to grab guns? Alexander Hamilton gives us a pretty good idea in The Federalist No. 78:
"There is no position which depends on clearer principles than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid."
One other little point: State governments gave up a few powers when the country was formed. But, the American people did not give up any of their rights. Were the people asked to sacrifice liberty, the Constitution would never have been ratified.
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