The United States of America was founded on the ideals of individual liberties and freedoms. The language contained in the founding documents makes that abundantly clear. The Declaration of Independence, in pertinent part, states:
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights that among these are Life, Liberty and the pursuit of Happiness. — that to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed—”.
Other rights were specifically enumerated in our Bill of Rights which are the first 10 Amendments to the Constitution. Rights are not granted to us or provided by the government because they are “Laws of Nature and of Nature’s God” which cannot be given away or taken away. Rather, the Founders instituted a government to secure these rights for us, forever!
But when it comes to the Second Amendment, states like New York and New Jersey are clamoring to take this right away, while the Department of Justice has remained silent, standing on the sidelines allowing the Judiciary to pass judgement on what is allowable and what is not. Now, it seems as evidenced by Retired Justice Stevens’ recent comment that the Second Amendment should be repealed, that the Courts have lost their independence and have become political too!
When it comes to ownership of firearms, the Liberty First Foundation believes that federal law should be the standard. In other words, if possession of a rifle, shotgun or pistol is not expressly prohibited by Federal law, it should be lawful to possess or “keep and bear” by legally qualified individuals in every state, district and territory as well as in every county, city, town or village.
That is simply not the case today! Instead we have a crazy patchwork of inconsistent, illogical and outright unconstitutional laws and regulations spanning the country from coast to coast. Some states have “preemption” laws which prohibit local communities from enacting statutes more restrictive than the state’s law regulating firearms. But, there is no Federal preemption law which prohibits the states from enacting statutes more restrictive than Federal law. According to the Gifford Law Center, “With very narrow exceptions, Congress has not expressly preempted state or local laws regulating firearms and ammunition.” Sadly, that has given states an unrestrained opportunity to assault the second amendment with impunity. And the Supreme Court has done little to restrain the states until making some significant decisions in Heller (2008), McDonald (2010) and Caetano (2016).
States however, thumb their collective noses at these Supreme Court decisions and continue to ban and restrict commonly owned semi-automatic rifles, pistols and shotguns with reckless abandon. As a result, “Statutory traps” for possession of now- illegal guns and magazines, litter the landscape like landmines in a war zone, making criminals out of their residents and interstate travel for all, a very risky business.
So we have sent a letter to the Attorney General of the United States, asking him to step in and level the playing field in the interest of fairness and consistency, and fidelity to the Second Amendment of the Constitution. In effect, we argue that any Federal legislation, now in effect which has not been overturned by the Supreme Court, should be the only standard regarding the legality of possessing any firearm. Therefore, any state or local statute more restrictive than federal law, is by inference, an unconstitutional infringement and subject to a Title 42 USC Section 1983 civil lawsuit as a deprivation of an enumerated right. The Department of Justice would then be creating a de facto federal preemption law protecting our freedoms nationwide.
We ask our readers to join us in our letter writing campaign by sending their own letter, or a copy of ours, to Mr. Sessions, your Congressmen and your Senators. The mailing address for Mr. Sessions is as follows: The Honorable Jefferson Sessions, Attorney General of the United States of America, U.S. Department of Justice, 950 Pennsylvania Avenue, NW, Washington, DC 20530-0001.
Here is our letter:
To The Honorable Jefferson Sessions,
It is with great honor and respect that we are writing to you on behalf of the Liberty First Foundation and freedom-loving Americans everywhere. We are a social media group on Facebook, consisting of thousands upon thousands of men and women from every state in the union, who are ardent supporters and defenders of the Second Amendment to the Constitution of the United States.
The purpose of this letter is twofold. First, to express our grave concerns regarding the numerous and flagrant infringements of the Second Amendment that are occurring throughout the United States, and second, to respectfully request that you immediately undertake an initiative to stop it. As the Chief Law Enforcement Officer in the country, you and your staff of highly trained lawyers, are uniquely positioned to bring an end to this systematic multi-state deprivation of our Second Amendment rights.
The inalienable right of the people to keep and bear arms, as guaranteed by the Bill of Rights, is under a vicious and sustained attack by State Legislatures in New York, New Jersey, California, Connecticut, Maryland and Oregon to name a few and by City Councils and Village Boards like Boulder, CO, Deerfield and Highland Park, IL.
In all cases, elected officials of these jurisdictions have improperly enacted statutes banning the possession, sale and transfer of hundreds of commonly owned semi-automatic rifles, handguns and shotguns, making criminals out of those who own them. Using any level of scrutiny, it is easy to determine that these so-called “common sense gun safety laws” are unmistakably unconstitutional have only one purpose; to disarm law abiding, legally qualified American citizens.
For your convenience, a link to the Highland Park city website, where Chapter 136 of their city ordinance is displayed, has been included:
As you can readily see, hundreds of weapons not prohibited by the National Firearm Act of 1934 or the Gun Control Act of 1968, are now considered to be contraband! These onerous and unreasonable gun control laws are examples of the tyranny the Founding Fathers warned about when they codified and ratified the Bill of Rights in 1791.
We must make this point perfectly clear. It is not our intention to challenge any existing Federal statutes. Rather, it is our steadfast position that any firearm lawfully possessed under current Federal statutes by qualified individuals, must also be lawfully possessed anywhere in the United States; in every neighborhood of every local jurisdiction, of every State, District, Possession and Territory of this great country. The United States Constitution is the supreme law of the land and the rights contained therein must be protected by the Federal government. Any state or local law to the contrary must be struck down.
To accomplish this, we must first stem the tide of the enactment of local laws that usurp federal authority. Many of these laws were spawned and inspired by the leadership of the Office of the Attorney General during President Obama’s Administration. Evidence of this fact can be traced back to a speech made by then-Attorney General Eric Holder, to the District Attorneys Association of the State of New York — Annual Conference, in New York City on Friday, January 25, 2013. In his remarks, which closely followed the incomprehensible and tragic school shooting in Newtown, CT, he said,
“Of course, it won’t always be easy to foster broad agreement on how to move forward to confront shared obstacles – and our democracy has always thrived on vigorous discussion and debate. But – in the weeks since last month’s horrific events in Newtown, Connecticut – the need to address one problem – unacceptable levels of gun violence – has come into sharp focus. And that’s why, at every level of the Obama Administration, my colleagues and I are more determined than ever to help bridge longstanding divides, to keep deadly weapons out of the hands of dangerous people, and to take the national fight against gun violence to a new level.”
The “shared obstacles” and “longstanding divides” Mr. Holder spoke of, were of course, the inability of the Democrats to pass gun control legislation in the United States Congress. Their alternative plan was, “to take the National fight” to enact such legislation, to the State Houses and City Halls across America! This ridiculously glaring bias against the Second Amendment was instrumental in encouraging the states to pass any gun control laws they wanted to, knowing full well they would not be challenged by the Attorney General Holder, who was a Democrat and native New Yorker.
Please feel free to infer, that we at the Liberty First Foundation, believe that Mr. Holder acted with the full knowledge, consent and approval of President Obama, who himself made multiple public appearances expressing his frustration with Congress for its refusal to pass gun control laws, and then signed a number of Executive Orders attempting to do what Congress would not. We also believe there was a politically motivated, concerted effort by Democrats at all levels of government, from the Whitehouse to the New York State Executive Mansion in Albany and beyond, to circumvent and infringe upon the Second Amendment to the greatest extent possible! As a result, those who own firearms have been left to the mercy of increasingly hostile state governments dominated by Democratic legislatures. Their words of elitism, coupled with their actions, are evidence of their bias and animus against gun owners, who were called “bitter clingers” by Presidential Candidate Obama during his 2008 campaign, and they are antithetical to the individual liberties that the Framers envisioned during the Founding Era of our Republic.
Within a month of the mass murders in Sandy Hook, New York State Governor Andrew Cuomo signed into law the SAFE Act which he described as the toughest gun control law in the United States. This law made New York State the first to pass severe restrictions on guns since the Sandy Hook massacre. Other states have followed New York’s lead because, up to this point, they have largely gone unchallenged and it appears that this movement by gun control advocates is gaining momentum wherever the political left is in control of state legislatures or city councils.
I think you will agree with us, that it is remarkably astonishing to see how unreasonable, unconstitutional and egregiously burdensome these firearm regulations have become; completely disregarding the Second Amendment and the subsequent landmark U.S. Supreme Court decisions of District of Columbia v. Heller, 554 U.S. 570 (2008), McDonald v. Chicago, 561 U.S. 742 (2010) and Caetano v. Massachusetts, 577 U. S. ____ (2016).
Accordingly, Mr. Sessions, we implore you to immediately stop the abuse of our civil liberties by suing any State or Local governments and their elected or appointed Officials individually, that have enacted, or attempt to enact, any legislation that restricts the lawful possession, sale and transfer of firearms and all their parts not contrary to existing Federal law and the Constitution. If you fail to act, you will only be forcing the victims of state tyranny to endure further suffering! Millions of Americans are counting on you!
As you are well aware, your authority to bring legal action against the states seeking permanent injunctive relief, emanates from the U.S. Constitution, Article III Sections 1 and 2, the Supremacy Clause found in Article VI, the Second, Ninth (the implicit right of self-defense as found in Heller and Caetano) and Fourteenth (Sections 1 and 5) Amendments as well as Title 42 USC Section 1983.
In 2008, Dick Anthony Heller successfully sued the District of Columbia by filing a “Section 1983” law suit. The Supreme Court held that the Second Amendment protects an individual’s right to possess a firearm, unconnected with service in a militia, for traditionally lawful purposes such as self-defense within the home.
And in McDonald, the Court held that the right of an individual to “keep and bear arms” is protected under the Second Amendment and is incorporated by the Due Process Clause of the Fourteenth Amendment against the states and their municipalities.
In Caetano, the Supreme Court, in a unanimous Per Curium decision, held that “the Second Amendment extends to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding for self-defense”, including stun guns which had been previously prohibited in Massachusetts. In his written opinion Justice Alito, joined by Justice Thomas, said, “If the fundamental right of self-defense does not protect Caetano, then the safety of all Americans is left to the mercy of state authorities who may be more concerned about disarming the people than about keeping them safe.
In consideration of the foregoing, we believe that now is the appropriate time to begin enforcing Section 1983 against the states. Admittedly, this area of constitutional law is still in its infancy, however, that should not preclude you from filing a lawsuit. No American citizen who believes his rights have been compromised should have to hire a lawyer and sue the government on his own. That responsibility falls squarely within the purview of the Civil Rights Division of your office. Your efforts may very well forge new case law and become an important part of Second Amendment history. Perhaps, the Supreme Court has tipped its hand in favor of individual liberties with its decisions in Heller, McDonald and Caetano. And if it has, that dovetails nicely with the proactive approach we believe only you can take to save the amendment from current and future infringements.
The Civil Rights Division, Special Litigation Section, of your Office is eminently qualified to take the lead on this new initiative. Mr. John Gore and his staff of experienced attorneys have litigated against the various states in the protection of every Constitutional right and statutory civil liberty imaginable, except for the Second Amendment! You must reverse this course of neglect. In taking the Oath of Office when you were sworn in as Attorney General, you pledged to support and defend the Constitution. We presume you meant the entire Constitution, so now is the time to redirect your attention to those who, under the color of law, seek to deprive us of our right to keep and bear arms. Please stay true to your oath and fight hard to protect the Constitution.
We believe in the rule of law, that gives Police and Prosecutors great power to enforce the laws of our nation, but when that same power is used to deprive citizens of their Constitutional or statutory rights, it destroys the public trust in the very institutions that form the fabric of our Republic. It is imperative to shift the burden of proving infringements from the public who is deprived to the enactors of the legislation that unreasonably restricts our liberties.
Politicians believe that the outcome justifies the means and, therefore, no gun control law or regulation is too unreasonable or burdensome to the Second Amendment, even when there is no demonstrable or empirical evidence to justify it. That dynamic can only be changed with your help.
We are citizens of the United States of America first and of the various states we may reside in, second. Our Constitutional rights can only be vindicated by the Department of Justice. Left to their own devices, states will continue to restrict the Second Amendment until such a time it has been completely nullified. That which is entirely lawful in Maine, for example, should not be unlawful in New York!
May God Bless you and the United States of America!