You know, I should know better than to get my guts in a knot when it comes to anything the “Feds” are proposing. It’s all a show and I’ll let you in on a secret – politicians know it’s a show but they play the game anyway.
Here’s the skinny. First off, the Federal government wears two Constitutional “hats” when it comes to creating legislation. The first is controlled by Article 1 Section 8 Clauses 1 through 16. These clauses define very clearly the areas where the government can create laws that affect the States of the Union directly. These areas include taxation (and that is clearly defined…), the coining of money and treason to name a few.
The second “hat” is controlled by Article 1 Section 8 Clause 17. It says that the government can make whatever law and rules it deems necessary to administer the District, the territories and possessions controlled by the government. They have “exclusive” legislative jurisdiction over these areas and no real limits are defined by the Constitution.
“To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of Particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;”
We’ll call these two distinct areas of influence Federal, to represent the first situation and National, to represent the second.
Next, we need to know that the Supreme Court uses a series of rules, called canons, to evaluate the laws created by the government. One of these states: expressio unius est exclusio alterius. Roughly translated, this phrase means that whatever is omitted is understood to be excluded. So when evaluating a law, the Court looks to the Preamble of the original Bill to see if the legislature specifically calls out that this legislation will apply to the Union States. If it doesn’t make that distinction, it is assumed that law makers explicitly excluded them and are using their National powers to legislate for the territories and possessions controlled by the US.
Then, if it still isn’t clear, the court will look to the text itself to determine intent. One of the things they look at is the defined terms in the law. When terms are specifically defined in the laws they mean only what the law makers want them to mean and nothing else. So for example, if law makers define fruit like this:
“The term “fruit” in this title, means any edible product that grows on trees and has a red skin and stem. This includes apples and cherries.”
Then further in the law define a tax on “fruit”:
“All growers of fruit in the United States are hereby subject to a $1.00 per pound tax.”
You grow bananas and peaches. Do you owe the tax? Not according to the definition of fruit in the law. But how may people will go and look up all the definitions in any new law? Most people assume that the “term” fruit means exactly the same thing the common “word” fruit means. And therein lays the problem.
Now, on this item called “gun control”. Knowing the text of the 2nd Amendment, and using the Canons of Construction from above (and remembering that the terms include or includes are terms of LIMITED expansion – they are limited to things already in the same class of item enumerated in the definition…) let’s look at the Bill and walk through its construction.
If you look at the Preamble or title of the bill it does not distinctly call out that it applies to the States of the Union. Let’s assume that’s just a booboo on Harry Reid’s part. The second thing to do is look to the definitions in the legislation.
In the bill, I went to look for definitions of United States and State (as well as a few other things). S. 649, the Safe Communities, Safe Schools Act of 2013 contains a number of definitions. It defines “chief law enforcement officer”. It defines “transfer”. It defines “crime of violence” and it defines “purchase” as well as a bunch of other things.
But I wanted to see how it defines either the term “state” or “United States”. So, since this new bill is a change to 18 U.S.C (United States Code) Section 922, I went into the code to see what I could find. So, Section 922 is part of Chapter 44. I went into Chapter 44 and low and behold, Section 921 is titled Definitions. Now we’re cooking with gas.
In the very first paragraph (a) sub paragraph (2) buried in the definition of interstate or foreign commerce” I find the following:
“The term “State” includes the District of Columbia, the Commonwealth of Puerto Rico, and the possessions of the United States (not including the Canal Zone).”
But no definition of United States is listed.
But, look at the definition of the term “State” and we see something interesting. The class of items outlined in the definition is territories or possessions of the United States. And THESE fall under the National jurisdiction outlined in Article 1 Section 8 Clause 17 of the Constitution. This collaborates our finding that the States of the Union are not directly mentioned in the title / preamble of the bill.
But let’s dig deeper. Even in Section 921 – Definitions, there isn’t a distinct definition for the term “United States” so let’s drill up from Chapter 44 to Part 1 which contains Chapter 44. In Chapter 1, we see Section 5 – United States defined we’ll find the following:
“The term “United States”, as used in this title in a territorial sense, includes all places and waters, continental or insular, subject to the jurisdiction of the United States, except the Canal Zone.
Bingo! This definition “The term “United States”, as used in this title (18 U.S.C.) in a territorial sense” gives you the answer. In this title, for these laws, the jurisdiction being used is the “National” jurisdictions as outlined in Article 1 Section 8 Clause 17 of the Constitution and DOES NOT generally apply the sovereign States of the Union.
Why do you think Ms. Pelosi makes people look like fools when they ask if something is Constitutional or not. It’s because she and every other politician in Washington D.C. knows that it’s Constitutional. These people are asking the wrong question. The question put to these hucksters SHOULD be, “Under which legislative jurisdiction are you proposing this bill, Federal or National?” If we can get people to start asking the right questions, we can start putting the Federal government and it’s over reaching quest for power BACK in Pandora’s Box.