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Taking steps in my state to protect my gun rights

2nd Amendment_thumb[1]I’ve been absent from posting these last few days because I’ve been actively trying to start up a dialog with my local representatives in my state about measures we can take to thwart any unconstitutional attempt by the government to restrict our right to bear arms.  I must say their response to my proposal has been a bit disappointing.  Even though they agree with me, there appears to be very little desire to pursue any such actions.  My district senator fears that any such legislation to protect the gun rights of our citizens would be challenged and ruled unconstitutional.  Below is the the email exchange I had with my senator.

Senator XXXXX,

I’m contacting you in regards to gun rights and protecting those rights of North Dakota gun owners against federal regulation and any attempt to ban specific weapons or high capacity clips in the wake of the Newtown tragedy.  I understand that a terrible event like the one that occurred at the Sandy Hook Elementary School in December can stir deep emotions in the public; however we must not compromise our liberties with a knee jerk reaction that is based on emotions.  Losing our liberties is in itself a tragedy.  Because once liberty is lost, we never regain it.  The Newtown shootings occurred in spite of some of the strictest gun laws in the land and now anti-gun groups see an opportunity to advance their agenda.

The Constitution of the United States prohibits the federal government from crafting any law that bans the right of the people to bear arms.  If I decide the weapon of choice for me is a semi-automatic model and that type is banned how is that not violating my 2nd amendment rights?  The Founders believed that people had the right to defend their life, liberty, and property against any entity to include the government if that government became a threat to these rights.  Contrary to popular belief the 2nd amendment is not about hunting.  It’s about the right of the people to have the ability to defend themselves no matter who threatens them or their rights and we would be derelict in our duties as citizens not to take steps to thwart any unconstitutional attempt by our federal government to ban specific types of weapons.

I believe the model to protect our gun rights in North Dakota can be found in the Montana Firearms Freedom Act that was signed into law in April 2009This law basically declares that any firearms manufactured and retained in-state are beyond the authority of Congress under its constitutional power to regulate commerce among the states.    After the enactment of Montana’s law other similar laws were enacted in South Dakota, Wyoming, Utah, and Tennessee and over 20 states have introduced similar bills in their legislatures.   These states are taking the necessary steps to protect their citizens from unconstitutional bans or regulation on guns by the federal government.  My question is what do we need to do to get this ball rolling so the gun rights of our citizens can be afforded the same protections found in these other states?  Do you feel there is any interest in Bismarck to address this concern?  Can you sponsor a bill or do we need to get a petition going?  If we do nothing I fear we are leaving ourselves extremely vulnerable to the very real possibility of new gun regulations crafted by and imposed on us by the federal government.

Please let me know if there is anything I can do to help with this.


John Carey

His response to me.

Thanks John.  I agree with you, but the Montana law you describe is clearly unconstitutional.  I wish the states could decide what commerce is within the reach of the federal government, but they can’t.  Our best strategy is to make voices heard in Congress.

I in-turn responded.

Senator XXXXX,

I want to thank you for the quick response on this issue.  I understand your reservations about the Firearms Freedom Act in regards to the constitutionality of it and I do see your point in regards to the commerce clause.  The commerce clause has been abused by congress throughout our history as justification to impose its will on the states.  This is why I do not believe the solution to this problem can be found in the halls of congress.  Instead in accordance with the 10th amendment, the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively.  This is a states’ rights issue because the constitution expressly forbids the government from crafting legislation that bans the individual right to bear arms.   So in this case the commerce clause does not apply because the state is exercising powers in regards to protecting the rights of its citizens to bear arms.  These powers are expressly reserved to the states.

Our own state constitution Article I, Declaration of Rights, Section 1 states;  All individuals are by nature equally free and independent and have certain inalienable rights, among which are those of enjoying and defending life and liberty; acquiring, possessing and protecting property and reputation; pursuing and obtaining safety and happiness; and to keep and bear arms for the defense of their person, family, property, and the state, and for lawful hunting, recreational, and other lawful purposes, which shall not be infringe.

Our state’s position on this matter is very clear.  No law can be enacted on the state or federal level that prohibits the right of our citizens to keep and bear arms.  And if the federal government attempts to ban guns outside the scope of its constitutional authority, then North Dakota must take action to thwart this unconstitutional act.  The Supremacy Clause would not apply in this instance because its only is valid with laws enacted within the parameters of the 17 enumerated powers granted to congress.  And as I stated earlier the commerce clause cannot be used as an end around the 2nd amendment because it expressly forbids the federal government from crafting legislation that prohibits the right of the people to bear arms.

Other states are moving forward with this legislation.  The South Carolina legislature will consider a bill that would nullify a considerable amount of assumed federal power over firearms – the Firearms Freedom Act.   You can read the entire article at the following link:  If this is not the best way forward then let’s find a way forward that doesn’t involve the commerce clause.  Let’s think outside of the box and get this done.

I know a number of people who share these same concerns.  I feel that now more than ever our gun rights are in jeopardy from an out of control federal government that desires to restrict them.  I ask that you please consider these words.

Thank you for your time.


John Carey

So as you can see, my senator has automatically defaulted to the commerce clause and believes the best option is by seeking a federal solution. Now I believe my senator is a good person, he has just been condition to think that all matters like this default to the federal government when just the opposite is true.  Unfortunately this is how most state officials across the nation seem react when you ask them to stand up for state rights.  My position is the commerce clause is not applicable in this instance because the constitution expressly forbids the government from crafting legislation that prohibits the right to bear arms.  So they have no power to regulate this area.  They never have had this power.  We’ve just let them get away with it in the past.  I would be interested to know what my readers think.

Citizens who believe we as a people have a right to bear arms and this right is protected by the 2nd amendment need to step up and contact their local officials.  Ask them what their plan is to protect those rights at the state level from the coming unconstitutional overreach by the federal government.  Remind them that this issue falls within the purview of the state’s authority, because the 10th amendment says it does.  I’m still waiting to hear back from my senator.  My hope is I made a strong enough argument to spark a serious discussion on this issue and perhaps the sponsorship of legislation that enhances the protection of my gun rights.  We shall see.

Liberty forever, freedom forever!


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  • TexasFred January 5, 2013 at 12:57 PM

    What so many don’t seem to understand is this; the fight is huge, it will be nationwide, but basically we can only do so much and we have to do it through our elected officials. And YOU are doing just that!

    I know my email is always FULL of emails from folks all over America wanting ME to take on this issue or that issue or some other issue that specifically applies to their town, city, county or state.

    I have had to break down and tell people, OK, you want ME to do something? Here’s what I’ll do; I’ll make a post about it and tell people what’s going on in Bugtussle USA but it’s up to YOU, the residents of Bugtussle, to get on the stick and get busy working YOUR officials…

    I live in Texas, I can affect *some* influence on NATIONAL matters but state and local are on the residents, but make NO mistake, my local, state and federal officials get an earful from ME on a regular basis.
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    • John Carey January 5, 2013 at 6:09 PM

      That’s the point. We must do the leg work in each of our states to get this done. Gun rights is a state issue because the federal government has no authority to prohibit the individual from the right to bear arms. This right shall not be infringed…period. End of the discussion on the federal side of the house. And anyone who can prove to me that the founding fathers saw differently, I will shut down this blog. The problem they will run into is they soon find out the founders believed just that.

      And just because the pinheads in Washington may believe they have authority doesn’t make it so. Why this is such a hard concept to sell to my local politicians is beyond me. Like I said they have been conditioned for such a long time to be submissive to their perceived federal masters. It’s time to wake them up.
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  • Steve Dennis January 6, 2013 at 6:15 AM

    Well written letters John and what a disappointing response. I think what is most disappointing about it is the fact that he seems willing to take what should be a state right issue and hand it over to the federal government instead of trying to do something about it himself. Even our elected officials have it backwards nowadays.
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    • John Carey January 6, 2013 at 7:06 AM

      You know Steve, the states have been part of the problem for far too long. They have feasted off of federal dollars for so long they fear losing them. Perhaps this is one reason why there is so much apprehension when you ask one of these local officials to stand up and do the right thing they know by doing so they risk biting the hand that feeds them. This is my greatest concern and why more than ever we need to elect the right people at the local level. If we don’t, then we get what we deserve.
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  • Jim at Conservatives on Fire January 6, 2013 at 7:27 AM

    Maybe our problem has been one of grammar, John. People seem to have a problem commas. The Second Amendment should be read :

    A well regulated militia, being necessary to the security of a free state, shall not be infringed. The right of the people to keep ad bear arms shall not be infringed.

    The anti-gun folks want people to believe that the Second Amendment refers only to the need of a miitia. NOT TRUE!
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    • John Carey January 6, 2013 at 7:45 PM

      Jim the North Dakota’s Constitution states the following: ARTICLE XI
      GENERAL PROVISIONS, Section 16. The reserve militia of this state consists of all able-bodied individuals eighteen years of age and older residing in the state, unless exempted by the laws of the United States or
      of this state. The active militia is the national guard of this state and consists of individuals who volunteer and are accepted unless exempted by the laws of the United States or of this state. An individual whose religious tenets or conscientious scruples forbid that individual to bear arms may not be compelled to do so in times of peace, but that individual shall pay an equivalent for a personal service.

      That pretty much shoots down the militia argument. And my guess is there are many state constitutions that read nearly the same across the country. I will need to do some research.

      As far a grammar goes, well as long as you read the numerous speeches given, letters written and the federalist papers you will have zero doubt about what the founders intent was with the 2nd amendment. The problem is no one is willing to take the next step and learn what the intent of the men who crafted and debated the second amendment was. But the source documents are there for everyone to see.
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  • 5etester January 6, 2013 at 1:19 PM

    The narrow decision in D.C. v. Heller a couple years back should give great cause for concern amongst all freedom lovers. Sure the court upheld 5-4 in overturning the Chicago handgun ban, but it should have never been that close. Then it was State’s infringing upon Federal law in question. Now we face somewhat of a reversal. As always when it comes to defending the 2nd Amendment, we have trouble providing a unified defense. Too many people who support the rule of law and the Bill of Rights are not strong on self-protection and fall into this reflex thinking after Newtown type events that we must do “something”. In other words, they think it’s OK to give a “little” on this issue in the interest of making our kids safer. Unfortunately, they don’t see American’s rights as a whole. You simply cannot give up pieces and parts of our rights under any circumstances for once you do the whole is only as strong as the weakest link. It’s a slippery slope. They may not care about guns as a rights issue because they don’t own a gun, but someday something they do hold dear will come under attack. My point is that the pro 2nd Amendment crowd is strong but we need ALL liberty lovers to defend EVERY right every time.

    I wonder if your Senator is a gun owner? And is he a Constitutional Attorney? He seems to have already determined that a multitude of other state’s are violating it. Unfortunately, in defending it, you have to resort to interpretational issues such as the commerce clause. In the Heller case, Chicago tried to make the claim that a right contained in the Bill of Rights applies to the States only when it is an indispensable attribute of any “ ‘civi-lized’ ” legal system. Any legal system anywhere in the world! What does that have to do with American citizen’s rights here in the United States? Well, it doesn’t and the SCOTUS overturned but it just goes to show how the anti 2nd Amendment crowd will try any angle possible.

    Keep up the fight John.
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    • John Carey January 6, 2013 at 10:19 PM

      Here’s how I see it. There are two different mindset when looking at this. The first mindset is you have folks who believe that after the 14th amendment was passed the due process clause in the amendment applies equally to the states in regards to the Bill of Rights. This view is called the incorporation doctrine and up until the 1960s the SCOTUS’ interpretation of this clause was extremely limited. In fact in 1947, the SCOTUS rejected an argument that the Fifth Amendment’s right against Self-Incrimination applied to the states through the Fourteenth Amendment. Justice Felix Frankfurter, argued that some rights guaranteed by the Fourteenth Amendment may overlap with the guarantees of the Bill of Rights, but are not based directly upon such rights. So up until Justice Frankfurter retired in 1962 the SCOTUS was unwilling to apply the incorporation doctrine on the states. When he retired the court shifted and eventually most provisions of the Bill of Rights were incorporated to apply to the states. This was not done through the amendment process it was done through ideological interpretation by the court of the 14th amendment. And for 50 years now we have been living a lie believing that the application of the Bill of Rights applies to the states and in my opinion that’s simply not true. The SCOTUS had no authority to interpret the 14th amendment in a manner that fundamentally changes the constitution. Their constitutional charter is to review federal laws and determine the constitutionality of the laws

      I say this rolling into the second mindset which I embrace. States are sovereign entities and when the constitution was crafted it was crafted to limit the federal government’s ability to infringe on the rights of the people and states. The states have almost unlimited powers while the federal government’s powers are few and limited. The founders did this intentionally because they knew government was flawed and if it was going to be a flaw imperfect beast they wanted it as close to the people as they could get it. This is why the states via the 10th amendment have extensive powers. This is how a constitutional originalist views this issue…which I am. The way I see it is the federal government has no authority to restrict or ban arms because the constitution expressly forbids them doing so. They have zero say and that this is indeed a state issue. But even if we do follow the track of the incorporation doctrine, the federal government still has no constitutional authority to restrict or ban weapons because the constitution expressly forbids this. And if this applies at the state level then states are expressly forbidden from restricting or ban weapons. In either case the federal government has no say. That’s my long winded opinion.
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