Consider the holding of the U.S. Supreme Court in Murdock v. Pennsylvania (319 U.S. 105, 108 , 63 S.Ct. 870, 872, May 5, 1943):
The First Amendment, which the Fourteenth makes applicable to the states, declares that ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press * * *.’ It could hardly be denied that a tax laid specifically on the exercise of those freedoms would be unconstitutional. Yet the license tax imposed by this ordinance is in substance just that.
Now let’s paraphrase that statement with reference to gun control:
The Second Amendment, which the Fourteenth makes applicable to the states, declares that, ‘* * * the right to keep and bear arms shall not be infringed.” It could hardly be denied that a regulation laid specifically on the exercise of this right would be unconstitutional. Yet the legislation now before Congress would imposed by its express terms as well as substance just such an unconstitutional infringement.
Later on, the Court in Murdock made the general point more broadly and directly (319 U.S. at 113, 63 S.Ct. at 875):
A state may not impose a charge for the enjoyment of a right granted by the federal constitution. Thus, it may not exact a license tax for the privilege of carrying on interstate commerce * * * * A license tax applied to activities guaranteed by the First Amendment would have the same destructive effect. * * * * It is a flat license tax levied and collected as a condition to the pursuit of activities whose enjoyment is guaranteed by the First Amendment. Accordingly, it restrains in advance those constitutional liberties of press and religion and inevitably tends to suppress their exercise. That is almost uniformly recognized as the inherent vice and evil of this flat license tax.
And again, we could easily paraphrase this text to apply to the Second Amendment, and we would be bolstered by recent Supreme Court Decisions especially 06-28-2010 McDonald v City of Chicago Ill 130 SCt 3020
(For the Full text of Murdock, see: Murdock v Com of Pennsylvania May 3 1943)(see also *2 below).
The right to self-defense is fundamental. One who believes in the theory of Darwinian Evolution might say it is the most fundamental of all rights: once alive, every creature has the right to do whatever is necessary to preserve its life “in nature red in tooth and claw.”
But in historical as well as evolutionary time the right to self-defense antedates any rights protected by the First Amendment to the Constitution of the United States because it does not depend on our humanity (where speech clearly does). Being part of every animal’s instinctive makeup and nature, it is a right of all who are “born free.”
I wrote recently of my conversation with a New Orleans Policeman at one of my favorite cafes: the Trolley Stop at 1923 St. Charles Avenue. This officer (an African American) told me he believed in the Second Amendment and the right to keep and bear arms, “but do you want them to have more firepower than us? do you want them to be able to outgun us?”
The right of government officials to have more “firepower” than the people is not fundamental, anymore than it is the right of “some animals to be more equal than others.” Certain lions might wish for stronger jaws or sharper teeth, but none have any “right” to more than others.
Government “entitlement” to superiority on the battlefield, in a very real and direct manner, is like slavery itself: a purely human invention res contra natura alteris omnis rebus (an unnatural thing, unlike all other things). Legislatively determined inequality of firepower is, to my mind, as utterly intolerable as inequality of speech or the rights to breathe and walk upright. (If you order me to bow down, you had better be a King, deriving his rights from God, and if you are such a Divine King, you have the right to kill me but I have no right to kill you—and this is inherently un-American.)
As Justice Clarence Thomas has written in several opinions now, the coincidence between the abolition of slavery and the advent of gun control laws in the United States was no accident: freedom for former slaves implied the full panoply of rights available to white citizens. For better or for worse, discrimination has never been written into the constitution, until now. But people have been conditioned to think that discrimination against the poor is acceptable, discrimination against the non-elite middle class is acceptable, in fact ALL discrimination is acceptable so long as it is not done along racial lines, apparently. So the government now wants to establish a hierarchical class system in relation to gun ownership.
The evolving classes, castes, and categories of citizens recognized by the Patriot Act the NDAA, and the proposed gun control legislation now before Congress are basically these: (1) Federal Government Police & their Agents, (2) State Government Police & their Agents, (3) Everyone else in North America. I fear that these are categories or classes of people which today’s Supreme Court might just uphold as “rational” and therefore constitutional, since they are neither racial nor sexual and therefore not “suspect”—ONLY racial discrimination has been outlawed in the US, NOT discrimination by class or title or status as office or license holder….and this is an American disease or sickness that is killing the Constitution.
The chimeras haunting both American Slavery and the abolition of American Slavery are both Racial: in the beginning, the alleged Racial inferiority of Africans was asserted in Defense of Slavery, and it was widely found to be an inadequate defense. But afterwards, in a SUPREME Perversion of logic, the Supreme Court of the United States basically rendered all the civil rights laws of the United States enacted after 1865 bad jokes: simultaneously nugatory pointless and toothless, by saying they were designed ONLY to insure equality of the races and nothing else.
Now that we have an “African” President [I would call him African rather the African-American---Jessie Jackson, Morgan Freeman, and Al Sharpton are "African Americans", but Obama is not] the civil rights laws, it seems, can be dispensed with entirely.
Total Power in the Hands of Government: this ultimately, appears to be Obama’s goal in life—his self-perceived destiny, his ambition (and his goals are supported by a remarkably broad coalition including obvious evil-doers Senators Dianne Feinstein and Barbara Boxer, but treacherous snakes such as John McCain and Lindsey Graham).
The long “road to serfdom” that began with the map laid out by the Communist Manifesto in February 1848, finding its first governmental foundation laid down by Abraham Lincoln in the United States 1861-65, and was afterwards expanded into a highway under Progressives such as Theodore Roosevelt, William Howard Taft, and the possibly unwitting (or just witless) Woodrow Wilson, then a superhighway under Franklin D. Roosevelt and all his successors, is about to reach its final destination in the Dictatorship of the Proletariat if Barack Hussein Obama can just disarm the American People FOREVER!
The Courts have been heading in this general direction (the abolition of civil rights all together, once and for all, forget about giving any rights to black or white people) for a very long time. In fact, the entire purpose of Earl Warren’s Civil Right’s Revolution in the Courts, in retrospect, was simply to pit race-against-race, to create unhealthy envy and hateful one-upsmanship rather than healthy competition.
True, there are some majestic, wonderful opinions and some beautiful language I have found in those old decisions from the 1960s and 1970s in particular, mostly petering out around 1985-6. Very little GOOD has happened in civil rights since 1987, but, strange as it may seem, the recent jurisprudence of Clarence Thomas to the Supreme Court has created at least one “Point of Light” in Second Amendment Jurisprudence in particular. Ordinarily, political rhetoric concerning the lessons of or effects lingering slavery becomes tiresome quickly. But in the case of the Second Amendment after emancipation, nothing could be clearer than the need of former slaves to own guns to protect their newly acquired liberty and property (even as limited as it was for most of the century and a half since emancipation).
Abolition of the private right to keep and bear arms, without much doubt, is a RETURN TO SLAVERY FOR ALL, regardless of race, creed, color, ethnic origin, religion, sex, or occupation—unless you are a member of the police. The State will then have an ABSOLUTE monopoly on legitimate violence, and the jails and prisons will be filled with all dissenting individuals.
Aside from Clarence Thomas, who will defend us against the threatened confiscation of our only sure means of self-defense AGAINST THE GOVERNMENT? Anthony Kennedy, painfully and unhappily, stands as at least an occasional beacon for individual privacy and personal autonomy. Antonin Scalia would probably be a constitutionalist if it were politically popular, but he appears to believe that legislatures and congress can limit the constitution pretty much at will if they want to. So Scalia’s contributions to “freedom” jurisprudence are pretty much limited to the realm of “judge made” law and precedent. We need two more votes—perhaps we have Samuel Anthony Alito (*), John Roberts, Stephen G. Breyer? Maybe or maybe not. John Roberts appears to blow with the political winds like Scalia. Breyer would probably follow Hillary Clinton’s anti-gun lead. It looks bad, folks!
But to go back to the key point of Murdock v. Pennsylvania and its companion cases (e.g. Douglas v City of Jeannette (Pennsylvania) 319 US 157 63 SCt 882 87 LEd 1324 *1943* and Jones v City of Opelika:
the power to regulate commerce does NOT include the power to infringe upon the fundamental rights guaranteed by Amendments 1-10. As legions of Law Professors have correctly pointed out, this concept (that there MUST BE an exception to Congress’ broad regulatory power, even after the onset of the New Deal) traces back most precisely to Footnote Four of U.S. v. Carolene Products, Inc., decided in 1938. US v Carolene Products Co 304 US 144 58 SCt 778 82 LEd 1234 SCOTUS 04-25-1938.
Given the advances in Second Amendment Jurisprudence seen over the past decade in D.C. v. Heller and MacDonald v. City of Chicago, I would hate to see this Country take another Great Leap Forward (*1) into Maoist Communist Dictatorship.
So, should Private Gun Sales be Regulated by the State or Federal Government? Only if we want to take a Great Leap Forward into a de facto Communistic Caste System, or an animal farm where “Some Animals are More Equal than Others”
(*1) Wikipedia casually and very briefly mentions in a longer and very favorable, supportive (i.e. pro-communist, pro-Maoist) article on the Great Leap Forward:
Deaths by violence
Not all deaths during the Great Leap were from starvation. Frank Dikötter estimates that at least 2.5 million people were beaten or tortured to death and 1 to 3 million committed suicide. He provides some illustrative examples. In Xinyang, where over a million died in 1960, 6-7 percent (around 67,000) of these were beaten to death by the militias. In Daoxian county, 10 percent of those who died had been “buried alive, clubbed to death or otherwise killed by party members and their militia.” In Shimen county, around 13,500 died in 1960, of these 12 per cent were “beaten or driven to their deaths.”
Modes of resistance
There were various forms of resistance to the Great Leap Forward. Several provinces saw armed rebellion, though these rebellions never posed a serious threat to the Central Government. Rebellions are documented to have occurred in Honan, Shandong, Qinghai, Gansu, Sichuan, Fujian, and Yunnan provinces and in the Tibetan Autonomous Region. In Honan, Shandong, Qinghai, Gansu, and Sichuan, these rebellions lasted more than a year. Aside from rebellions, there was also occasional violence against cadre members. Raids on granaries, arson and other vandalism, train robberies, and raids on neighboring villages and counties were common.
According to over 20 years of research by Ralph Thaxton, professor of politics at Brandeis University, villagers turned against the CPC during and after the Great Leap, seeing it as autocratic, brutal, corrupt, and mean-spirited. The CPC’s policies, which included plunder, forced labor, and starvation, according to Thaxton, led villagers “to think about their relationship with the Communist Party in ways that do not bode well for the continuity of socialist rule.”
Often, villagers composed doggerel to show their defiance to the regime, and “perhaps, to remain sane.” During the Great Leap, one jingle ran: “Flatter shamelessly—eat delicacies…. Don’t flatter—starve to death for sure.”
Impact on the government
Many local officials were tried and publicly executed for giving out misinformation.
Mao stepped down as State Chairman of the PRC in 1959, though he did retain his position as Chairman of the CPC. Liu Shaoqi (the new PRC Chairman) and reformist Deng Xiaoping (CPC General Secretary) were left in charge to change policy to bring about economic recovery. Mao’s Great Leap Forward policy came under open criticism at the Lushan party conference. The attack was led by Minister of National Defense Peng Dehuai, who, initially troubled by the potentially adverse effect of the Great Leap Forward on the modernization of the armed forces, also admonished unnamed party members for trying to “jump into communism in one step.” After the Lushan showdown, Mao defensively replaced Peng with Lin Biao.
However, in June 1962, the party held an enlarged Central Work Conference and rehabilitated the majority of the deposed comrades who had criticized Mao in the aftermath of the Great Leap Forward. The event was again discussed, with much self-criticism, with the contemporary government calling it a “serious [loss] to our country and people” and blaming the cult of personality of Mao.
(*2) A state may not impose a charge for the enjoyment of a right granted by the federal constitution. Thus, it may not exact a license tax for the privilege of carrying on interstate commerce (McGoldrick v. Berwind-White Co., 309 U.S. 33, 56-58, 60 S.Ct. 388, 397, 398, 84 L.Ed. 565, 128 A.L.R. 876), although it may tax the property used in, or the income derived from, that commerce, so long as those taxes are not discriminatory. Id., 309 U.S. at page 47, 60 S.Ct. at page 392, 84 L.Ed. 565, 128 A.L.R. 876 and cases cited. A license tax applied to activities guaranteed by the First Amendment would have the same destructive effect. It is true that the First Amendment, like the commerce clause, draws no distinction between license taxes, fixed sum taxes, and other kinds of taxes. But that is no reason why we should shut our eyes to the nature of the tax and its destructive influence. The power to impose a license tax on the exercise of these freedoms is indeed as potent as the power of censorship which this Court has repeatedly struck down. * * * * * * * [I]n Jones v. Opelika, * * * 316 U.S. at pages 607-609, 620, 623, 62 S.Ct. at pages 1243, 1244, 1250, 1251, 86 L.Ed. 1691, 141 A.L.R. 514 * * * as in the present ones, we have something very different from a registration system under which those going from house to house are required to give their names, addresses and other marks of identification to the authorities. In all of these cases the issuance of the permit or license is dependent on the payment of a license tax. And the license tax is fixed in amount and unrelated to the scope of the activities of petitioners or to their realized revenues. It is not a nominal fee *114 imposed as a regulatory measure to defray the expenses of policing the activities in question. 8 It is in no way apportioned. It is a flat license tax levied and collected as a condition to the pursuit of activities whose enjoyment is guaranteed by the First Amendment. Accordingly, it restrains in advance those constitutional liberties of press and religion and inevitably tends to suppress their exercise. That is almost uniformly recognized as the inherent vice and evil of this flat license tax.
(*3): do you ever why do we have or how we got three justices named “Anthony” or a rare Italian variant ”Antonin”>|?)