Back to the "First 100 Ways" Index Page
THE SECOND AMENDMENT
Executive Director, Gun Owners of America
presented to the Board of Trustees of
The Conservative Caucus Foundation
The Second Amendment to the Constitution is as sweeping as any pronouncement in the Bill of Rights. While the First Amendment is couched in terms of which laws Congress can or cannot make, the Second Amendment, after a purpose clause, states that the right to keep and bear arms "shall not be infringed" by anyone period.
Yet, at the same time Federal courts are producing "constitutional rights" which appear nowhere in the Constitution, the pundits and political establishment have made every effort to read the Second Amendment into oblivion.
Ultimately, if the Second Amendment is ever to be restored to the role the Founders assigned to it, the pro-gun movement is going to have to focus on rolling back the constitutional incursions which have occurred.
THE EXECUTIVE BRANCH
"PERSONNEL IS POLICY"
It sounds like a cliché and it is but there is no more important advice which can be given a new president than to choose the right people to set the policies for his administration.
In 1984, Senate negotiators for the pro-gun McClure-Volkmer Firearms Owners Protection Act were startled to learn that the BATF representatives of the Reagan administration were as anti-gun as any bureaucrats who had ever spoken on behalf of an openly anti-gun Democratic administration. They shouldn't have been surprised.
The Reagan administration's Deputy Solicitor General, Andrew Frey the man who decided what cases the Justice Department took to the Supreme Court had been a contributor to Handgun Control.
Flowing from Attorney General William French Smith's shaky conservative credentials, Reagan's first major criminal justice initiative, the 1981 criminal code recodification proposal, would have eliminated firearms sales and manufacture in America by treating gun dealers and gun manufacturers like mob bosses under the Racketeer Influenced and Corrupt Organization Act (RICO).
It was the Bush administration which opened the door to outlawing semiautomatic weapons when it imposed a ban on imported "semiautos." A spokesman for the Bush Justice Department who now is a prominent advisor to Republicans on the House Crime Subcommittee even had the temerity to ask the National Rifle Association for permission to administratively ban all semiautomatic weapons, in the interests of "symmetry."
In the end, there is no substitute for firm and sound presidential judgment with respect
to the men and women who staff his administration. But these specific recommendations may provide some guidance:
the president's personnel director should be the most conservative person in the White House;
the president should impose a litmus test on persons desiring to serve in his administration and that litmus test should center on a commitment to upholding the Constitution as the Founders intended; and
the president should remove every individual serving in the previous administration whom it is legally possible to remove and he should actively search for ways to extend his firing authority.
It is inconceivable that anyone serving in the Clinton administration would be preferable to a replacement selected at random from a phone book. The president should assiduously avoid the curse of the Reagan administration, which left policy makers in place who had performed the same function for Jimmy Carter.
In no area are personnel choices more critical than in the selection of Federal judges. The problem of preventing the federal courts from disintegrating even further has two aspects: (1) maintaining a holding pattern until a conservative president can be installed and (2) insuring that this conservative president uses his tenure to vigorously reshape the federal courts.
Over ninety judicial vacancies now wait to be filled, and the panel of judges administering the U.S. courts would like another 52 new judgeships to be created.
The Republican-controlled United States Senate should hold up confirmation on judgeship candidates who refuse to commit to uphold the Constitution, as the Founders intended it and particularly the long-neglected Second and Tenth Amendments. This urgently needs to be done.
With respect to the process of judicial selection by the new conservative administration, the following recommendations are in order:
the American Bar Association should be removed from any role in the judicial selection process;
the Attorney General should be a man who is not just a house-trained product of the American legal establishment, but who understands the extent to which many legal precedents pervert both the constitutional intent of the Founders and fundamental common sense as well;
the president should select only judges fully committed to uphold the Constitution as written;
there should be litmus tests imposed on judicial nominees: a realization of the legal and moral error in Roe v. Wade, a commitment to upholding the Constitution as the Founders intended (particularly the Second Amendment and the limitations on federal powers, and a recognition of the right of Congress to limit the jurisdiction of errant judges.
"POLICY IS POLICY" REFORM THROUGH EXECUTIVE ACTION
The liberal Democrats have acted on the assumption that controversial policies unable to pass congressional muster can frequently be implemented by unilateral action by the Executive Branch. The Bureau of Alcohol, Tobacco & Firearms, for example, has recently circumvented the congressional ban on Federal gun registration by systematizing information on form 4473's which have been submitted to it by dealers going out of business. This sort of "legislation by decree" is, of course, unconstitutional.
There is no law which requires Federal records on gun owners to be maintained. DESTROY THEM!
Another item which the administration should destroy is the F.I.S.T. program, designed at Carnegie Mellon University to implement the Federal Brady Law's "Instant Check" feature through a computer program which goes beyond statutory requirements to automatically retain information about the gun owner and his gun, unless specifically instructed to delete it. REPUDIATE IT!
In addition, there is a variety of other anti-gun executive orders and more informal policies, including the semiautomatic weapon import ban. The most recent of these is the absurd requirement that weapons for Federal law enforcement officers have child safety locks. RESCIND THEM!
And, finally, there is no statute establishing the Bureau of Alcohol, Tobacco & Firearms which was created by administrative fiat. ELIMINATE IT!
Just as Congress took the lead in incrementally trying to repeal the Second Amendment, it is up to Congress preferably with the President pointing the direction to act promptly to comprehensively restore it.
Article II, Section 3, of the Constitution vests the president with authority to "recommend to [Congress's] consideration such measures as he shall judge necessary and expedient..." Liberal administrations have not hesitated to exercise this authority, and a constitutionally committed presidency should be no less proactive in developing and pursuing an agenda.
This proactive pro-gun agenda will have the subsidiary benefit of preemptively counteracting the politically aggressive anti-gun agenda which will repeatedly be thrust upon it during the president's term. Each of the following items should be included on such a proactive pro-gun agenda:
(1) the death penalty for the District of Columbia. With 400-500 murders per year in Washington, the creation of a capital murder statute for the nation's capital would raise the specter the liberals fear most: a Federal death penalty which actually results in executions,
(2) requiring that Federal courts not release violent convicted criminals into the population merely on the basis of prison overcrowding,
(3) waiver of Federal gun laws respecting abused spouses who need a gun for self-defense against an abusive, battering partner,
(4) repeal of the District of Columbia's various gun bans,
(5) changes in the tax laws to insure the deductibility of the cost of guns purchased in self-defense to protect businesses from rioters, and
6) extension of the right of aggrieved citizens to sue the Bureau of Alcohol, Tobacco & Firearms for violation of their constitutional rights.
The goal must be to completely remove the Federal government from the restrictive regulation of firearms. This will involve the repeal of the major elements of the Federal anti-gun framework, including:
the Brady Law's provisos regarding a so-called "harassment period" prior to the purchase of a handgun, plus its even more insidious national-registration-like Instant Check system,
repeal of the bans on automatic and semiautomatic firearms which have exacerbated the nation's crime problem,
repeal of the 1968 Gun Control Act's Federalization of enforcement functions which, if exercised at all, are to fall within the jurisdiction of state and local governments,
repeal of unconstitutional efforts to ban the transportation of guns by imposing huge "gun free school zones" 2,000 feet in diameter in the middle of every American city.
Incredibly, the Federal courts have been more sensitive to the constitutional limitations on the Federal regulation of firearms than have the other two, more political branches.
In United States v. Lopez, for example, the Supreme Court overturned, on Tenth Amendment grounds, a congressional enactment that banned, with very limited exceptions, the possession of a firearm within 1,000 feet of a school, including a home school.
It is time to challenge other unconstitutional anti-gun statutes, including:
the successor to the unconstitutional "school gun ban", which is no more than a verbatim reenactment of the unconstitutional statute with a meaningless addition of language requiring that the illegal firearm "affect commerce";
the bans on automatic and semiautomatic firearms; and
the "ex post facto" laws which retroactively impose gun bans on persons for crimes asserted to have been committed decades ago.
Liberal presidencies can teach conservatives a lot about the effective use of litigation and a friendly administration to achieve policy goals:
Liberal "outside" interest groups regularly bring suits to challenge the constitutionality of Federal statutes or the legalities of executive policies either on behalf of themselves or an "aggrieved" plaintiff. Frequently, liberal "friendlies" within the executive branch will concede these suits, leaving no one to argue for the legality of the statute or policy. (The difficulty of obtaining standing on behalf of a competing outside group to defend a statute or policy is most recently illustrated by the U.S. Supreme Court's decision in Yniguez v. Arizona.)
State and local officials have, in some cases, been much more hostile to the Second Amendment than the Federal government. Not surprising, those states which have the most draconian anti-gun regimes also have the highest crime rates. And, in many respects, the highest crime rate of all has characterized Washington, D.C., which, according to the U.S. Constitution, is subject to Federal control.
Washington, D.C., bans virtually all handguns, automatic weapons, semiautomatic weapons, martial arts weapons, and the like. Yet there are certainly few places in the world more dangerous than this municipality.
Article I, Section 8, Clause 17, of the Constitution, which delineates the powers of Congress, specifically grants the federal government the power to "exercise exclusive Legislation in all cases whatsoever, over such District ... as may ... become the seat of the Government of the United States..."
The president should propose legislation to repeal Washington's ban on virtually all firearms, in addition to repealing its effort to outlaw semiautomatics nationally by holding gun dealers and manufacturers strictly liable for the criminal misuse of their firearms.
States such as Georgia, Ohio, and Texas are all considering legislation to repeal their "permit" systems and adopt pro-gun statues such as Vermont's. They should be encouraged to continue to move in this direction.
In addition, states should be encouraged to repeal their "Instant Check" systems which they were coerced to enact in order to avoid the consequences of the Brady Law's harassment period.
Because of the Constitution's sweeping prohibition on the infringement of the right to keep and bear arms by all sources including both Federal and state governments it is no solution for the Federal government to allow states like New York to violate the constitutional rights of its citizens.
For three decades, anti-gun forces have won victory after victory by developing a politically attractive agenda, pushing it relentlessly, and allowing the publicity given current events by a friendly media to push this legislation to the President's desk. Unless conservatives can successfully emulate this model, they continue to be condemned to an escalating cycle of defeat and frustration.
Larry Pratt has been Executive Director of Gun Owners of America for 19 years. GOA is a national membership organization of 150,000 Americans dedicated to promoting their second amendment freedom to keep and bear arms.
GOA lobbies for the pro-gun position in Washington and is involved in the firearms issues in the states. GOA's work includes providing legal assistance to those involved in law suits with the Bureau of Alcohol, Tobacco and Firearms, the Federal firearms law enforcement agency.
Mr. Pratt has appeared on numerous national radio and TV programs such as CNN'sCrossfire and Larry King Live, the Morton Downey Show, Geraldo, CBS's 48 Hours, ABC's Peter Jennings' special on guns and many others. He has debated Congressmen James Traficant, Jr. (D-Ohio), Charles Rangel (D-N.Y.), and Senator Howard Metzenbaum (D-Ohio), among others. His columns have appeared in newspapers across the country.
He published a book, Armed People Victorious, in 1990 and was editor of a book, Safeguarding Liberty: The Constitution & Citizen Militias, in 1995.
Mr. Pratt has held elective office in the state legislature of Virginia, serving in the House of Delegates. Pratt directs a number of other public interest organizations and serves as the Vice-Chairman of the American Institute for Cancer Research.
Back to the "First 100 Ways" Index
Copyright © 2005 - 1997 The Conservative Caucus Research, Analysis and Education Foundation. All rights reserved.