Lies the government told you

by Andrew P. Napolitano

  But of Course Law Enforcement Officers

  Deserve to Be Armed

  But then we should consider who the wolves in the scenario are. The government looks us in the eyes and tells us that it is acting with our best intentions at heart. There is one name, Ken Ballew, that is not familiar to many of us; but it should be. He is just one example of the atrocities that have been perpetrated during the fraud that is gun control.

  On a balmy night in June 1971, Ballew was in the middle of his shower when he heard a banging on his back door as if someone was trying to break it down. Worried about the safety of his live-in girlfriend, who was sleeping in bed, he ran and grabbed his gun and whirled toward the door. At the same time, about twelve men spilled into his home, dressed in ratty clothes and carrying weapons. Naked and terrified, Ballew instinctively drew his weapon up, ready to protect his home and loved one. At that moment, one of the men breaking into his home yelled “Gun!” The next thing Ballew knew, he was lying on the ground, bleeding from a gunshot wound to the head while his girlfriend was being dragged from her bed, naked, and thrown into a hallway. Ballew managed to survive but was paralyzed for the rest of his life.21

  The home invaders were not criminals, but rather a combination of BATF and local law enforcement officials. Ballew was not a hardened criminal who had just committed heinous crimes. Actually, he had not committed any crime at all. Unfortunately for him, a so-called reliable confidential informant provided “information” to the police that Ballew had live hand grenades in his home. Even though the law enforcement officials noted that there were no grenades registered under his name, as required by an obscure provision of the National Firearms Act, the BATF felt that a night raiding party of twelve men was the appropriate reaction. And their reactions led to Ballew’s permanent paralysis. Of course, after an investigation, the reality was that all the grenades in Ballew’s home were deactivated and so did not have to be registered.

  This is just one of the reasons that a subcommittee of the Senate Committee on the Judiciary attacked the Bureau of Alcohol, Tobacco, and Firearms, stating that it was apparent that the “enforcement tactics made possible by current federal firearms laws are constitutionally, legally and practically reprehensible” (emphases added). The subcommittee noted that about “75 percent of BATF gun prosecutions were aimed at ordinary citizens who had neither criminal intent nor knowledge, but were enticed by agents into unknowing technical violations. In one case, the Bureau’s acting chief admitted that the individual was being prosecuted for completely lawful behavior.”22 Innocent citizens who choose to be prepared to defend themselves often get caught in the cross fire of convoluted and undecipherable legislation.

  If you think that it would never happen to you, consider the case of Wanda Boley, a music teacher of twenty-one years. Wanda carried a gun in her car, which was legal in Virginia as long as the weapon was easily visible. Unbeknownst to her, the federal government had recently passed the School Safety Zones Act in 1990, which prohibited weapons near school zones, and which was eventually declared unconstitutional by the Supreme Court. Since she was following Virginia law, her gun was in view of a passerby who reported it to the BATF. Boley was then arrested during the middle of a girl’s choir class. Though she had never been violent and had done her best to obey the law, she became a “criminal” facing up to five years in prison.23 She was initially suspended from her teaching job, but the support she received from students, parents, and the school—combined with an unusually rational district attorney— resulted in a probationary period of six months with good behavior, at which time she was able to return to the school.

  The subjectivity of the provisions in the Act granted broad latitude to the BATF to enforce the gun regulations. The Bureau of Alcohol, Tobacco, and Firearms is the chief enforcer of all federal regulations with regard to guns. But, unlike most other enforcement agencies that are under the Department of Justice, the BATF originally began as a part of the Internal Revenue Service, then was shuffled to the Department of Treasury, then the Department of Justice, then back to the IRS, until finally, after the creation of the Department of Homeland Security, it returned to the Department of Justice.

  The government’s own confusion as to where to place these jack-booted thugs stemmed from its initial lie with regard to the National Firearms Act; that it was a revenue-raising measure, not a means of gun control, and therefore fell under the auspices of the IRS. Yet, if all the gun control regulations are considered revenue-raising measures, why do agents of the BATF raid homes for the most minor of offenses that carry small fines; fines that, if assessed, bring in less revenue than the cost of the raid?

  One Small Step Forward: The Right to Bear Arms

  Is a Fundamental Individual Right

  The spawn of gun control regulations at the state and federal levels resulted in a situation in which it was almost impossible for a law-abiding citizen to obtain a handgun permit, even for his own home. The District of Columbia, for example, criminalized the act of having an operational handgun in one’s own home. Imagine that, even if you were able to obtain a permit for your firearm, the law in essence prohibited you from being prepared to use it for the constitutional purpose of self-defense. You might have a slim chance to own a handgun legally, but get no chance to use it legally.

  One man in the District of Columbia wanted to be able to use his gun. Dick Heller owned his handgun, a 1911 single action Colt .22, bought in 1976. It was the gun from Gunsmoke.24 Unfortunately for Heller, this was the year that the District of Columbia passed its infamous gun ban. Having learned from Germany’s past history with gun registration, Heller decided not to register his gun, fearing that it would be confiscated. Soon, Heller began working as a security guard for the Federal Judicial Center. While on the job, he was required to carry a handgun in order to protect himself and his federal workplace. Heller was a federal police officer with a federal license to use his federally issued gun at his federal workplace.

  Until 2002, things went along famously. But Heller lived in a high-crime area, and one day he noticed bullet holes in his town house. This motivated him to action, and he decided to request a permit for his Colt. Unfortunately, his “Gunsmoke” weapon was no longer acceptable. Rather, the gun, because it was a bottom-loading gun, was banned from being possessed or registered. If Heller, a certified law enforcement officer, could not obtain a permit, what chance would anyone else have? Heller decided that this was not a state of affairs he was willing to live with and began a fight to regain his Second Amendment rights.

  Heller filed a lawsuit in 2003, along with five other residents of Washington, D.C., who were fed up with the local government’s total infringement of their constitutional right.

  The result of this lawsuit was the United States Supreme Court decision in District of Columbia v. Heller. A majority of the court dispelled the myth of the Second Amendment as a collective right and held that the right to bear arms is an individual and fundamental right. The court noted that the right is a fundamental (natural) right, stating that “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.” Through this statement, the Court recognized the right to keep and bear arms as a natural and therefore fundamental right.

  In its opinion, the Court analyzed each of the clauses in the Second Amendment separately and determined that “the right of the people” meant that the right belonged to the individual, like those enumerated in the First and Fourth Amendments. “To keep and bear arms” was held to mean “the carrying of the weapon . . . for the purpose of offensive or defensive action.” The Court therefore determined that the D.C. handgun ban was an infringement of the natural, constitutionally protected right of self-defense, and struck down the requirement that a gun be disassembled and inoperable in one’s own home.

  One Giant Leap Back:

  A Fundamental Right Can Be Infringed

  As much as the Heller decision has been
celebrated for its long-sought-for conclusion that the right to keep and bear arms is an individual and fundamental right, there is also a huge gap in its protection. That gap is the fact that the Court, while giving pages of analysis on each separate clause of the Second Amendment, almost completely ignored the most crucial, the phrase “shall not be infringed.” One would think that is because this phrase, above all the others, is the most self-explanatory. Rather than “should not” or other statements that would portend that the Founding Fathers wanted to give the federal government some leeway within this right, the words used are “shall not.” “Shall not” does not mean “should not”; it means that the right cannot, for any reason, be infringed by any government without due process. The Court did not grant this phrase any analysis, noting only that “of course the right was not unlimited” (emphases added) and that the Second Amendment did not “protect the right of citizens to carry arms for any sort of confrontation.” The statements made by the Court focused on the idea that certain types of weapons were not protected.

  As well, the Court determined only the right to carry guns in the home, noting that the case did not “cast doubt on longstanding . . . laws forbidding the carrying of firearms in sensitive places such as schools or government buildings.” But it also protects only certain weapons, not overruling Miller but modifying it to mean that “the Second Amendment does not protect those weapons not typically possessed by law abiding citizens for lawful purposes.” Miller had held that the Second Amendment only protected the ownership and possession of weapons typically possessed by the military. But without an exhaustive analysis or an objective standard under which to judge whether or not a law infringes on the Second Amendment, the Court has left open the door for any government to continue its infringement. By not addressing the standard of review to be applied by courts to gun laws, the Court has left open the door for lower courts to decide each case as they feel, not as the Constitution requires.

  At the moment, then, the state need only argue at most that the law passes strict scrutiny. The strict scrutiny standard essentially means that any law the government wants to pass that infringes on a constitutional right must affirmatively and effectively serve a compelling government interest by the least restrictive means. Anytime the court analyzes a law under strict scrutiny, there are three steps to ensuring that it passes constitutional muster: First, the law must be justified by a compelling government interest, which means that it is an interest that the government needs to maintain in order for it to deliver government services to people in its jurisdictions. For example, courts have held that maintaining a stable political system, protecting voters from confusion, undue influence and intimidation, and preventing vote-buying are all compelling state interests.

  Second, the law must be narrowly tailored to achieve that interest, which means that it cannot be too broad, thereby affecting more people and rights than is required, or too narrow, meaning that it does not address all that the so-called compelling interest requires. The government has to prove to the court that the law actually advances the compelling interest, without being too broad or too narrow. It cannot restrict anything outside the purview of the interest or not restrict those areas that should be restricted in order to further the interest.

  Third, the law must use the least restrictive means possible. It must be the least restrictive and least burdensome on those it affects. For example, the government cannot choose to pass a curfew law requiring all persons to be home by six o’clock because it wants to prevent the criminal activity of a few at night.

  Given that public safety and therefore crime prevention are classified as a compelling state interest, and since the correlation between gun control and crime reduction has been incorrectly accepted as truth, then very few gun regulations will be overturned even when analyzed under the strict scrutiny standard; especially when the government can lie and argue that disarming the citizens will result in a lower violent crime rate. This is not the way that our most fundamental rights should be protected. The only way to ensure the protection of the fundamental right to self-defense is to require a higher standard, enunciated by the Supreme Court in some notable First Amendment cases, which prohibits the government from impairing such fundamental liberties absent “a need to further a state interest of the highest order.”25

  Developed, though never precisely defined, in a series of opinions by Chief Justice Warren Burger and Justice Thurgood Marshall throughout the 1970s and 1980s, the use of this standard of review illustrated that the Court required that any impairment of the fundamental right to free speech by the government would have to be justified by only the highest of state interests and applied in the most narrowly possible fashion to the successful accomplishment of that interest. Generally, only the preservation of a free society was found by the Court to be of the highest state interest. Therefore, only those gun regulations that would be vital to uphold a free society would be upheld. Those would be the most highly rational laws, such as ensuring that violent felons do not possess weapons, which had factual bases, and for which regulations the government would not need to use deception to ensure their passage. But the idea of making it difficult for everyone to defend himself or requiring that the government know—via registration—who could defend himself, is the stuff of which tyrannies are made.

  And, Don’t Worry,

  the State Can Still Take Away Your Rights

  The Heller decision has another loophole that the Court avoided; that is whether or not the Second Amendment protections apply against only the federal or also against the state governments. While some lower state courts state that the Second Amendment protects the people of that state from both federal and state infringement, the majority of the courts hold that the Second Amendment protects the individual only from federal action and the states can do whatever they want. The problem is that, if the Second Amendment does not protect the people from state action, then in effect, the Second Amendment means nothing at all. There is a reason why almost all of the provisions of the Bill of Rights have been held to apply to the states.

  Imagine if California decided to force Wicca on the people as the religion of choice, and all other religions would be banned. Would it really matter that this was not a federal regulation? This is why the majority of the amendments have been applied against the states by the Supreme Court. This is true of the First Amendment, even though it states that “Congress shall make no law . . .” Given that the Second Amendment simply says that “the right of the people shall not be infringed,” containing no explicit mention of which government is prohibited from infringing, it should be an even stronger candidate for its application against state infringement. This is especially true since none of the Heller justices, not even those dissenting, endorsed the “states’ rights” approach.

  The Supreme Court in Heller noted that the right to keep and bear arms was not dependent upon the Constitution for its existence and therefore was a natural right that neither the state nor federal government has a right to infringe without due process. Natural Law teaches that there are certain rights and freedoms that are not granted to us by the government but rather come from human nature. Since these rights do not come from the government, the government cannot take them away. For example, the government cannot declare that all people must worship one god and that worshipping any other god is unlawful. The freedom of religion is a natural right and therefore no government can take that right away, absent due process.

  If the government does try to take a natural right away, an independent judiciary can step in and protect the individual. It is therefore important to remember that if the government attempts to usurp a right that derives from nature—like the right of self-defense— we are protected from the government by the courts, which have the ability and the duty to prevent the government from such an attempt. The court must enforce the Natural Law and ensure that it is not taken away without procedural due process.

  Like Natural Law, when
the Constitution grants us certain rights and states that those rights cannot be infringed, this means that the government cannot take away those rights without due process of law. “Due process” is a term used in both the Fifth and Fourteenth Amendments. The Fifth states that “no person shall be . . . deprived of life, liberty or property, without due process of law.” The Fourteenth Amendment states, “nor shall any State deprive any person of life, liberty, or property, without due process of law” (emphasis added).

  In essence, both these amendments require that any deprivations of rights inherent in our humanity or directly protected by the Constitution cannot be taken away by any government without, at the least, a notice to the person of charges or proceedings, a hearing at which the person may speak and that is presided over by an impartial judge and a neutral jury; basically, a fair jury trial. It was the Fourteenth Amendment Due Process Clause that the Supreme Court used in order to incorporate most of the Bill of Rights against the states in a series of decisions.

  Unfortunately, rather than incorporating the entire Bill of Rights in one round, the Supreme Court used a case-by-case basis to decree that each Amendment protects the people from state governments. This resulted in almost, but not all, of the first eight amendments being applied against the states. The Supreme Court never issued a decision that expressly incorporated the Second Amendment to the states, until Heller.

  This loophole in Heller has garnered notice, and the Supreme Court recently agreed to hear an appeal of NRA v. Chicago, which is a case involving a local ban on handguns in the City of Chicago. The lower court held that the Second Amendment did not apply to the states unless it was directly incorporated by the Supreme Court. In a similar case, Maloney v Cuomo, the court held that Heller, and therefore the Second Amendment, was only applicable to the federal government and that therefore the states were allowed to infringe on the Constitutional right to keep and bear arms.26 The Maloney court erroneously stated that “it is settled law . . . that the Second Amendment applies only to limitations the Federal government seeks to impose on this right.”