A Note on the Second Amendment

On January 4, 2020, on just the second day of the 117th Congress, Representative Sheila Jackson Lee (D-TX), introduced the Sabika Sheikh Firearm Licensing and Registration Act (H.R.127) “to provide for the licensing of firearm and ammunition possession and the registration of firearms, and to prohibit the possession of certain ammunition.” The bill is named after a Pakistani Muslim exchange student who was shot to death in a Santa Fe, Texas, high school in 2018, although seven other students and two teachers were murdered as well.

So far the bill has no cosponsors. That’s a good thing because this is one of the most evil bills ever introduced in Congress (and members of Congress have introduced some utterly evil bills over the years).

Under this bill, “the Attorney General, through the Bureau of Alcohol, Tobacco, Firearms and Explosives, shall establish a system for licensing the possession of firearms or ammunition in the United States, and for the registration with the Bureau of each firearm present in the United States.”

Here is the registration provision:

Under the firearm registration system, the owner of a firearm shall transmit to the Bureau—(A) the make, model, and serial number of the firearm, the identity of the owner of the firearm, the date the firearm was acquired by the owner, and where the firearm is or will be stored; and (B) a notice specifying the identity of any person to whom, and any period of time during which, the firearm will be loaned to the person.

The Attorney General shall establish and maintain a database of all firearms registered pursuant to this subsection. The Attorney General shall make the contents of the database accessible to all members of the public, all Federal, State, and local law enforcement authorities, all branches of the United States Armed Forces, and all State and local governments, as defined by the Bureau.

Here is the licensing provision:

Except as otherwise provided in this subsection, the Attorney General shall issue to an individual a license to possess a firearm and ammunition if the individual—(i) has attained 21 years of age; (ii) after applying for the license—

(I) undergoes a criminal background check conducted by the national instant criminal background check system established under section 103 of the Brady Handgun Violence Prevention Act, and the check does not indicate that possession of a firearm by the individual would violate subsection (g) or (n) of section 922 or State law;

(II) undergoes a psychological evaluation conducted in accordance with paragraph (2), and the evaluation does not indicate that the individual is psychologically unsuited to possess a firearm; and

(III) successfully completes a training course, certified by the Attorney General, in the use, safety, and storage of firearms, that includes at least 24 hours of training; and

(iii) demonstrates that, on issuance of the license, the individual will have in effect an insurance policy issued under subsection (d).

The insurance policy is issued by the Attorney General and costs $800.

It is surprising that Representative Steve Scalise (R-LA) didn’t mention this bill during his appearance on the Laura Ingraham show late last month. According to his congressional website:

A strong supporter of the Second Amendment, Congressman Scalise has sponsored and cosponsored legislation protecting citizens’ right to keep and bear arms. The ability of law abiding citizens to bear arms and the right to self-defense is a fundamental constitutional right of every law-abiding American. Congressman Scalise supports law-abiding citizens’ ability to purchase firearms and national reciprocity for concealed carry permit holders. Congressman Scalise’s pro-gun stance has earned him an A+ rating from the National Rifle Association. A member of the Congressional Second Amendment Task Force, Congressman Scalise will continue fighting to protect every citizen’s Second Amendment right to keep and bear arms.

Likewise, there is no mention of this bill Scalise’s website, not under press releases, and not even under the Second Amendment section.

In his appearance on Ingraham’s show just hours after House Speaker Nancy Pelosi held a news conference where she engaged in “deliberately scaring people to distract from Biden’s leftist, job-killing agenda—and to set the stage for a Democrat gun grab,” Scalise said:

Look, in the last eight days, president Biden’s probably killed over a million American jobs with these executive orders he did on everything from banning leases—we see that in South Louisiana, the damage it will do to hardworking jobs, to Keystone, to the Paris accord that’s going to kill manufacturing in America.

That’s what they’ve done in the policy, and so look, if there was a real, credible threat that she knew of, no matter who it is, a member of Congress or somebody else, go to the authorities with that. And she didn’t do that. She goes to the press, which tells you what she is really trying to do is scare people, create distractions.

Another thing they’re trying to do, Laura, is take away our Second Amendment rights. Make no doubt—they’re going to be coming sometime this year with a bill to take away our second amendment rights. So they’re building this predicate that, “Oh, my God, everybody better be afraid of somebody with a gun,” and that’s going to be their attempt to then go take away the guns.

As pointed out above, that bill has already been introduced.

I note also that Scalise twice used the expression “Second Amendment rights.” Scalise, like the vast majority of Democrats, Republicans, liberals, and conservatives in Congress, the media, and the general public, misconstrue the nature of the Second Amendment.

The Second Amendment was added to the Constitution as part of the Bill of Rights (the first ten amendments to the Constitution), which the requisite number of states approved on December 15, 1791. The twenty-seven words of the Second Amendment read: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” It does not read: “The people shall have the right to keep and bear arms.”

The Second Amendment confers no positive right. It recognizes a pre-existing right. It is an additional limitation on federal power to infringe upon the right of the people to bear arms aside from the fact that no authority is granted to the federal government in its limited, enumerated powers to infringe upon this right in the first place.

Even if the Second Amendment only applied to the states’ ability to maintain militias—as many liberals and progressives say—or as subject to some other interpretation that limits its language to militias, that would still not affect Americans’ natural right to keep and bear arms. And even if the Second Amendment didn’t exist, Americans would still have the natural right to keep and bear arms.

This is because there is no authority granted to the federal government by the Constitution to ban, regulate, or otherwise infringe upon the right of the people to keep and bear arms.

Therefore, the federal government has no authority whatsoever under the Constitution to ban or regulate any type of handgun, shotgun, or rifle; large-capacity magazine; bump stock; ammunition; assault weapon; automatic weapon; machine gun, grenade, or bazooka.

And neither does the federal government have any authority whatsoever under the Constitution to establish or mandate gun-free zones, background checks, psychological evaluations, training courses, waiting periods, trigger locks, gun purchase limits and age restrictions, gun-barrel lengths, concealed weapons laws, licensing of gun dealers, gun-owner databases, gun licensing, gun registration, or gun insurance.

Too bad that Republicans in Congress support most of these things, otherwise most federal gun laws would have been repealed when Republicans had absolute control of the government for over four years under George W. Bush and for two years under Donald Trump.

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