The Recent Notion That Rights Are Not Absoluteby KrisAnne Hall, Constitutional Attorney
(Link to download & printable version)
Americans Should Not Be Stripped of Their Ability to Defend Themselves Against Lawlessness
Recently many in government and politics, in reaction to a violent and lawless few, have reignited the cry to “limit the legal ability” of Americans to buy and possess certain firearms. The states must protect the people from such federal overreach.
President Biden and others have said that our Rights are “not absolute” therefore those in government possess the authority to limit, define, and regulate away our Rights. If this rhetoric is true, then no one in America possesses ANY rights, they only have privileges granted at the pleasure of government. How is it that inherent rights endowed to man by the Creator are “not absolute,” but the crisis-driven dictates from the everchanging turnstile of elected officers ARE absolute?
Here's the truth: that which is absolute in our republican form of government is the Constitution (Article 6, Clause 2). It is the Constitution of the United States that limits and defines the authority delegated to the federal government. Within that Constitution there is NO AUTHORITY resting in the federal government to regulate, define, or limit the Rights of the People. This is particularly true with the Right to Keep and Bear Arms. Not only is there no power delegated to the federal government to create any law or regulation regarding the purchase or possession of firearms (no, that’s not where the commerce clause kicks in), the Second Amendment has very absolute language prohibiting the federal government from limiting or regulating this right (Not to mention that to guard against a tyrannical federal government is the core reason WHY this inherent right is enshrined within the Constitution).
It is not “the will of the majority,” as politicians and pundits suggest, that is the basis of government. When the majority’s will advocates the suspension of due process and the revocation of a person’s natural rights (rights which all officials involved in this debate swore an oath to uphold), that is how slavery gets its legal foothold.
The solution to a federal government overreaching its delegated authority as presented by those who drafted our government’s blueprint is straightforward: the States must refuse to impose and enforce these laws and prevent the federal government from doing the same within their State.
The Supreme Court of the United States quoted James Madison’s explanation of this action in Mack, Prinz v. US:
“Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself…” Federalist 51
“The local or municipal authorities form distinct and independent portions of the supremacy, no more subject within their respective authorities than the general authority is subject to them, within its own sphere.” Federalist 39
The States are a “double security” to the preservation of the people’s rights because the State will be a control on the unconstitutional exercise of power by the federal government against pretended power within the states’ jurisdictions.
The Supreme Court of the United States reiterated this principle in the majority opinion of NFIB v. Sebelius, when Justice John Roberts wrote:
“In the typical case we look to the States to defend their prerogatives by adopting the “the simple expedient of not yielding” to federal blandishments when they do not want to embrace federal policies as their own. The states are separate and independent sovereigns. Sometimes they have to act like it.”
The right to individually secure our life, liberty, and property is no different than our rights to freedom of speech, freedom to peaceably assemble, or freedom to worship and live out our faith. A law that prohibits a person from possessing any degree of property, but especially property essential to the personal security of individual rights, without due process, ought to be rejected. Capricious legislature moved by the tragedy du jour should not be the model for sound and stable government charged with protecting liberty. Rather than removing liberty under the guise of protecting children, we should protect liberty so that people can be free to protect themselves. *Remember, violent criminals don’t obey gun bans and the victim is always the first person on the scene, So why not empower the would-be victim to protect themselves, rather than removing their ability to do so? The cold reality is that a gun-free zone is a stripping of Americans’ natural right to defend themselves and has led to the death of many innocent children, as violent criminals ignore the signposts and slaughter the law-abiding.
State Governors, Legislators, and Sheriffs must declare publicly and openly that they will uphold their oath to the Constitution of the United States and the Constitution of their State by refusing to enforce and refusing the federal government the jurisdiction to enforce any limit upon the Rights of the People, to include the Right to keep and bear arms.
Sincerely and In Liberty,KrisAnne Hall, JDConstitutional Attorney
I do solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution and laws of the State of (name of State), and that I will faithfully discharge the duties of the office of (name of office) to the best of my ability. Oath of Office
For those who want a more detailed explanation:
The Declaration of Independence lays before us the premise and purpose of all governments, past, present, & future. It states:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.
Sole Purpose of Government:
- Secure the Rights of All People Equally and Individually
It is evident that the entire purpose of any form of government is to secure the rights of the individual citizen. The Rights our foundational documents refer to are those classified as “inherent rights:” and they consist of life, liberty, property, and the right to personally secure them in the best manner possible. The most basic of natural rights is the right to self-preservation, to which the natural right to secure property is connected. No person is secure in their life if they cannot also personally secure that life and the property upon which life is dependent. If a person is in danger of loss of life, liberty, or property and has not the personal right, along with the individual ability, to secure these essential rights, then each person is dependent upon someone else’s desire to protect them, reducing every person to that of an indentured or tributary slave, indebted in life to those who are tasked with its security.
Origin of Legislative Power:
- Individual Rights Precede Legislative Power, Therefore Legislative Power Exists Solely To Ensure Individual Rights
The legislator with his delegated responsibility, cannot be exalted above the inherent rights of the individual which he is charged to protect. Life, liberty, and property do not exist because people have legislators who have made laws. On the contrary, it was the fact that life, liberty, and property existed beforehand that caused people to entrust legislators with the power to make laws in the first place. So the justification “it was passed by the legislature,” does not and should not override an inherent individual right, even more so when the legislature is admonished by the Supreme Law to not infringe upon said right.
The Definition of “Just Power”
- Just Power of Government Secures the Individual’s Rights Above All Other Objectives
Therefore, it is a just government, which impartially secures to every man, whatever is his, individually and personally. It is because of this duty to protect the individual’s natural rights that every government in these United States incorporates the requirement of due process for the suspension of these Rights. It is not a just government, nor is an individual’s right secure under it, where the property which a man has in his personal safety and personal liberty, is violated by arbitrary seizures of one class of citizens for the comfort or peace of mind of the rest (even if the rest constitutes 60% of the population).
The Definition of “Unjust Power”
- Unjust Power is Power Exercised by Government to the Destruction of the Individual’s Rights
The mere existence of a majority desire does not override the natural rights of the minority. To create and enforce laws merely because the majority (60% of the people) desire the law to be so, absent any regard to personal and individual rights, is nothing more than a tyranny of the majority. It is through this errant political motivation that history’s greatest injustices have taken place, even here in America. It was once the majority opinion that a minority of people could, by law, be placed in a state of permanent and inherent servitude. It was once the majority opinion that a minority of people could be legally classified as mere property or chattel. It was once the majority opinion that legally enforced physical segregation of the majority from a minority was appropriate. It was once the majority opinion that a minority of Japanese Americans and Hopi Indians could lawfully be imprisoned indefinitely in internment camps without due process. Americans ought to be learning from these mistakes, not fighting to repeat them. The majority of Americans would agree that a single dictator with the power to oppress all is a wicked and unjust government. Please then explain, how the tyranny of the majority is any different than the despotism of one in the lives of those whose rights are violated?
Majority Rule is synonymous with Tyranny of the Majority Not with Liberty
The “Rule of Law” is a term that has been understood throughout history to mean a standard to limit the overreach of government and curb lawlessness. It is does not mean the authority of the government to rule over the people. The independent states of America and their central government were created with written Constitutions to maintain a written limited standard for government to prevent the will of the majority and those who govern to usurp the rights of the individual. The so-called “will of the majority” cannot be synonymous with the rule of law. If that be the case, then those who are disposed to usurp the rights of the people, need only to control the will of the majority; either through manipulations, coercions, fear, or brute force. It is because of this truth of the tyranny of the majority that every government in these United States is required to exist as a republic, not a pure democracy; that every law to be created through equal representation, and is to be governed by and limited to the ultimate purpose of all government - the security of the Rights of the individual through written Constitutions. When any form of government operates contrary to these foundations, that government has exceeded its proper function, acting in direct opposition to its own purpose. The law has been used to destroy its own objective. It has been applied to annihilating the justice that it was supposed to maintain, to limiting and destroying rights which its real purpose was to respect. It has converted lawful defense of life, liberty, and property into a crime, in order to punish lawful defense of these essential and natural rights.
When the Laws of Government Operate Contrary to Individual Rights:
- Government Is Operating Contrary to Its Sole Purpose
- Government Is Not Operating with Just Power
- The People Are Not Free
It becomes the duty of all who love and respect the Rights of their children to protect the citizen from the unjust operation of government.
When those entrusted in government to secure the rights of the individuals turn that trust into a tool to deny those rights, it is incumbent upon those who understand the obvious limits of government and the necessity of those limits to stand in opposition to that unjust use of authority. Just as those in America’s past, who refused to enforce the Federal Fugitive Slave Act because of its obvious abuse of power and destruction of rights wielded by those legislators who ratified it into law. Those who have taken an oath to secure the rights of the people, who understand the magnitude of that solemn promise and the unavoidable and tragic consequences of failing to uphold that promise, feel morally compelled to take a stand. How noble an example would American history have if there was just one Sheriff in Montgomery, Alabama who recognized that a law, ratified by legislators, signed by a governor, reflecting the will of the majority, was not a just law after all. What if instead of arresting Mrs. Rosa Parks, that Sheriff refused to enforce a law that deprived an individual of her rights and instead protected those rights, escorting Mrs. Parks, in which ever seat she chose, all the way home? Those, who are dedicated to their just and lawful duty to secure the rights of the people, understand that at these times the “will of the majority” and the distortion of the rule of law’s definition must be resisted.
If those in the federal government mean to obtain or deserve the full praise due to wise and just governments, they will equally respect the rights of property, and every inherent right of the individual. If they truly wish for a free and strong nation, they will endeavor to sacredly guard all forms of individual property and resist all desires to violate the individual’s right, regardless of the opinion of the majority or the fleeting emotion of the day. They will not seek to “target the bad guys” by stripping law abiding citizens of their inherent rights and turning otherwise lawful behavior into crimes. Our inherent rights are not killing innocents, so why are our rights targeted? Oppression doesn’t bring safety. Our governments should seek to be a pattern of liberty and an example of just government so that our posterity may be truly free.