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OPINION: Biden-Harris gun control plan violates U.S. Constitution

April 20, 2021 at 8:24 a.m.

Since gun control legislation has stymied in Congress, the Democrats for it and the Republicans against it, the Biden Harris Administration has opted once again to legislate by executive order. Biden has governed, bypassing Congress, with 39 executive orders in almost three months. In an April 7 news conference, he revealed his plans to do the same on gun control.

This is not new. The Obama-Biden Administration did the same thing over immigration by creating the DACA program by executive order because Congress would not give authority to extend citizenship to past illegal entry foreigners. It justified defying Congress then with, "We can't wait for Congress."

This was a serious, even impeachable, breach of the separation of powers doctrine deeply embedded in the Constitution, as is Biden's executive action that the Justice Department, an unelected body, propose new rules on gun control. Because one president defies the Constitution and is unpunished does not give authority for others to do the same. Constitutionally, only the legislative branch can make law (rules). Why is this so dangerous? Past practice, once done, is the "go-to" position, to maximize authority not actually in the Constitution or, in the Second Amendment case, is opposite to it and is the favored option for those wishing to destroy it. Constitutional perversion invites more constitutional perversion.

But at issue is a far greater violation of the Constitution than separation of powers. The Second Amendment specifically forbids either the executive branch, by presidential decree, or the legislative branch, by congressional statute, from any alterations of the Amendment. It reads in part, "the right of the people to keep and bear Arms, shall not be infringed." The statement ends with a period; nothing can be added to it or taken away from it. It is the most definitive sentence in the Constitution.

Although not yet exercised, to legislate or issue executive orders contrary to the Second Amendment is an impeachable offense. Neither Congress nor the president can remove or alter the peoples' right to defend themselves without an Article V new amendment to the Constitution.

The first half of the Second Amendment tells us why no branch of the federal government can alter or remove the right of the people to keep and bear arms: "A well regulated militia being necessary to the security of a free state." The militia was the people and it was understood that the government was always the lead threat to a free state.

"I ask, Sir, what is the militia? It is the whole people. To disarm the people is the best and most effectual way to enslave them" (George Mason co-author of the Second Amendment. See also Elliot, Vol. 3, June 16, 1788). The militia was defined in the Second Continental Congress as every able-bodied male 17 years of age and older -- the citizens.

The Bill of Rights was arranged in order of preference, with the exception of Amendments 9 and 10 because they dealt with the powers retained by the people and those reserved to the states, not specific freedoms as are Amendments 1-8. Amendment 2 is important because it protects these amendments. It is well to remember that the Second Amendment exists because the states would not support the new Constitution without a guarantee that the government could never deprive its citizens of their right to bear arms -- to resist as they had to the British. The language was as strong as they could make it and aimed (pun intended) specifically at government. It preserved their right to revolution should their other freedoms be taken.

What is it, Mr. Biden, that you do not understand about "shall not be infringed?"

Congress may not legislate the second Amendment away by authorizing some types of weapons over others, or approving some types of ammunition and denying others. Nor may the president go into the Oval Office and unilaterally make an executive order limiting or denying these things.

We must never forget the federal government's 11-day siege of Randy Weaver's mountain home near Ruby Ridge, Idaho, over Weaver's sale of two sawed-off shotguns. It ended August 31, 1992, with multiple deaths, including his boy and dog, and the sniper bullet which took out his wife Vicki in the doorway while holding their baby in her arms -- a "friendly" reminder of the federal government's enforcement of unconstitutional alterations to the Second Amendment.

One might argue we now want federal involvement. If so, why not do it as required by the Constitution? Don't just twist the Constitution to mean something never meant.

George Washington warned, "Let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed" (Farewell Address).

Instructions for change in the Constitution are provided in Article V and can be proposed by either Congress or "on the application of the legislatures of two-thirds of several states." Notice that the president is not allowed to propose amendments to the Constitution.

Once proposed, the federal government is removed from the picture altogether -- it cannot empower itself. The states are given two ways in which they can pass their power to the federal government (remember all power not listed in the Constitution belongs to the states and the people as per Amendment 10) but, either way, it requires three-quarters of the states to do so. Let Congress or the states initiate a proposed amendment to empower the federal government as we have 17 times before when the nation wanted a change.

The federal government, especially the president, does not like Article V because it requires permission from the states to enlarge federal jurisdiction. That is precisely why this Article exists; still, it remains the proper and only constitutional way to change the Second Amendment of the Constitution and anyone trying to do it in any other way should be removed from power as quickly as the Constitution allows.

The biggest fatality in this gun debate is the irreparable damage to the Constitution, and thus to freedom!

Harold W. Pease, Ph.D., is an expert on the United States Constitution and a syndicated columnist. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He taught history and political science from this perspective for more than 30 years. To read more of his weekly articles, visit www.LibertyUnderFire.org. Opinions expressed are those of the author.

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