BROKEN RECORD TIME. Yeah, I know I sound like one. But, as Dolly would put it, a broken record is still right twice a day.
The Second Amendment to the Constitution’s independent clause (You do know what an independent clause is, don’t you? Wassa matta, bunky? Sleep through the Fifth Grade?) reads, “The right of the people to keep and bear arms shall not be infringed.” (Changes in punctuation style from 18th to 21st Centuries elided.)
In legal terms, the use of the word “shall” makes this an absolute imperative. So long as the Constitution holds sway — whether in truth or in fiction — no actor, public or private, state or citizen, at any level of jurisdiction, shall infringe upon this right. As subsequent and recent case law has made abundantly clear (as though the original text didn’t already do that), this right inheres to the individual citizen.
Please notice that there is no “except for…” clause. There is no compelling public interest. There is no Get Out Of Jail card for prior restraint. Breaking this law is breaking this law and carries penalties such as Congress may prescribe. (Viz 18 USC 241-242.)
The Ninth Amendment to the Constitution reads, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
The people retain the right — trammelled as it has been in statist abuse
— to put whatsoever they wish in their bodies, no matter how stupid their soi-disant — scorn quotes — “betters” make think the various practices this permits.
The people also retain the right — enumerated in the Declaration of Independence — to liberty.
Wait just a minute, Alger! The Declaration isn’t law! Says so right here — Congress never passed it into law. Besides, if they had, it would be thrown out of court, because it’s not structured like a law.
Quite right, Dolly.
::wobbitta:: What!? You agree with me? World without end!
Of course! You are correct. But read this: nowhere in the text of the Constitution say that rights “retained by the people” have to be written down in proper legalese — or even written down at all.
Oh. I see.
Therefor, the people may be seen to retain rights never claimed and nowhere codified. In short, for the United States, if it is not made mandatory in the text, it is forbidden for the government to do it. On the other had, for the people, if it is not forbidden in the text, the government may not infringe, (so long as the exercise of the right brings no harm to others).
And thus, for the fact that state regulation of alcohol, or tobacco, or firearms is thus expressly forbidden to the United States, the very existence of the BATFE is unconstitutional. This is purely a matter of first principles.
But isn’t there a compelling public interest… in the maintenance of good public order?
Possibly. But I would circumscribe that like so: first, the state must demonstrate conclusively that each and every possible case lain the damage to good public order was affirmatively caused and permanently so by a specific action of a citizen against another citizen.
Not against society as a whole?
Society as a whole cannot have a legal existence. It cannot be brought to court for a cause of action. Therfore putative harm to society is illusory.
Harm can only be caused to or by individuals. The very notion of collective guilt should be anathema to a free people, and harm to a putative amorphous collective is merely the other side of that coin.
Then what’s the point of maintenance of public order?
As far as I can tell, except as it affects individuals, there is only the point that the state control the citizen — which also ought to be anathema to a free people. It is certainly not how this country is constituted.
But what about collectives of individuals? Like…
You mean corporations?
Corporations which are legally defined as persons for purposes of law?
I think so.
So, anyway, as I was saying, given that the We the People retain the rights to consume what we wish, and to liberty, and as the activities of the BATFE-I-E-I-O infringe upon both, as well as Second Amendment rights, and also the right to freedom of commerce, said Bureau must be held to be in violation of the Constitution, in its conception and its activites, and irreparably so.
So, while I have to agree that, in the current attacks on the Bureau over the Fast and Furious/Gunwalker scandals, immediate termination of the Bureau is unlikely politically, even though it should be a slam-dunk morally and legally.
And, as we wend our way through the process of extirpating the BATFE from American life, we must continue to make that last point — even to the point of boredom.