It Is Dangerous to Be Right When the Government Is Wrong (25 page)

135

Unfortunately, mayors such as Mayor Richard M. Daley of Chicago ignored
Heller
and kept their gun control laws in place. This resulted in the Supreme Court agreeing to hear the case of
McDonald v. The City of Chicago
(2010). The named plaintiff, Otis McDonald, was a seventy-six-year-old African American residing in Chicago. McDonald had lived in his neighborhood since the 1970s, and over time, the neighborhood became overrun with gangs and drug dealers. In fact, McDonald received threats on the street, and his home was broken into numerous times.
²¹
While McDonald felt it was his natural right to protect his family and his home from the neighborhood's increasing violence, Chicago's 1982 gun control law prevented him from doing so. It effectively banned possession of handguns by all persons living in Chicago, except certain employees of the government. Some argued McDonald could still legally own a shotgun in his home, but what use is a shotgun to a seventy-six-year-old man? As McDonald pointed out, “Yes, I own long guns . . . but how long do you think it will take me to get up, get out of bed, and get my hands on a shotgun if someone is breaking in through the bedroom window?”
²²

Fortunately, for McDonald and the rest of this nation, the Supreme Court woke up and applied the Second Amendment to the states. Justice Alito, writing for the majority of the Court, wrote a reasoned and careful analysis of the Second Amendment issue at hand. In doing so, he noted how Chicago's murder rates actually increased after the ban was enacted, and Chicago residents “now face one of the highest murder rates in the country and rates of other violent crimes that exceed the average in comparable cities.”
²³
Again, the numbers don't lie. Alito concluded the
Heller
decision answers the question as to whether the right to keep and bear arms is
fundamental
to our nation's scheme of liberty. The Court held it is “
unmistakable
” that this right is fundamental (natural) and explains, “Self-defense is a basic right, recognized by many legal systems from ancient times to the present day,”
²⁴
and no government may interfere with it.

136

While the ultimate application of the Second Amendment to states was correct, the Court again failed to restore our natural right to bear arms. The Court refused to hold the Chicago ban explicitly unconstitutional, but instead remanded the case to the lower federal appeals court to reconsider its ruling. Additionally, the majority again acknowledged a number of infringements the Court deemed constitutional. Yet, how can
any
infringement be constitutional when the Constitution plainly states “shall not be infringed”? Just as you do not need to register your books with the government in order to exercise your First Amendment rights, you do not need to register your firearms in order to exercise your Second Amendment rights.

The likely result of the recent Supreme Court decisions is a number of test cases. Cities, such as Chicago and New York, already declared they will enforce new regulations prohibiting gun ownership and seem prepared to face the Supreme Court again in future legal battles. When will the government bureaucrats get the point? You have the natural right to protect your life, liberty, and property. No matter how narrowly tailored or what governmental purpose the government argues it is protecting, nothing trumps your natural rights. How long shall we tolerate plutocrats who elevate their judgment and power over the Constitution? What has become of their oath to uphold it?

Conclusion

137

Until the government recognizes our natural right to keep and bear arms, the fight against gun control cannot wane. While the recent Supreme Court decisions are in the right direction, they are not enough to restore your right to defend your life, liberty, and property. If only one Justice in the majority voted the other way, any progress made may be quickly revoked. Moreover, the government's claim that it is only trying to protect you is clearly false. The government's regulations do not change criminals' attitudes on guns or where they carry their guns, but only where and how they get their guns. By enabling criminals to arm themselves and preventing potential victims from defending themselves, we are bound to repeat history's tragedies. I do not know what it will take for the people to wake up and realize the power the government is currently seizing, but I urge you to do so, before it is too late.

139

Chapter 9
You'll Hear from Me:
The Right to Petition the Government for Redress of Grievances

In 2002, the non-profit organization We the People Foundation for Constitutional Education petitioned the government to answer for violating the following provisions of the Constitution: The War Powers Clause with the undeclared Iraq War, the money clauses with the Federal Reserve System, the right to privacy with the Patriot Act, and the tax clauses by levying a direct, un-apportioned tax on labor. After having those petitions ignored, We the People, including 1,450 individuals, commenced a lawsuit against the United States government seeking to enforce their constitutional right to petition, and to compel the government's corresponding duty to respond. They argued that if the government failed to respond to petitions, then the people of the United States had a right to sanction the government, namely, in the form of withholding taxes. They thus adopted the mantra “No Answers, No Taxes,” citing in part the following excerpt from the
Journals of the Continental Congress
: “If money is wanted by Rulers who have in any manner oppressed the People, they may retain it until their grievances are redressed, and thus peaceably procure relief.”

A federal district court judge dismissed
We the People v. United States
. The court pointed to two inapposite Supreme Court cases as support. Specifically, the district court reasoned that if employment-related petitions made by government employees did not trigger a duty to respond, neither did petitions made by United States citizens for the enforcement of constitutional rights. The U.S. Court of Appeals for the Second Circuit in New York affirmed, and the Supreme Court declined to hear the case. To further silence the petitioning activities of organizations such as We the People, the Congress amended the Tax Relief and Health Care Act of 2006 to provide for five-thousand-dollar fines for anyone who submitted a so-called “specified frivolous submission” to the IRS. Among a host of others, frivolous submissions included arguments that “a taxpayer may withhold payment of taxes or the filing of a tax return until the [IRS] or other government entity responds to a First Amendment petition for redress of grievances.” Thus, the government not only took the stance that it was not bound by the Constitution, but that individuals could be punished harshly for attempting to exercise their constitutional right to hold the government accountable for its illegal conduct.

140

Why is it that a government can transgress our natural rights, and then so easily avoid responsibility when organizations such as We the People attempt to hold the government responsible? Isn't there a fundamental human yearning to right those wrongs which have been committed against us, regardless of whether the transgressor was an individual or a government, American or foreign? As we shall see, the right to petition the government for redress of grievances guarantees individuals a liberty to demand that legislatures take a particular action, and to sue the government when it breaks the law. For centuries, this has been one of the most jealously guarded rights in the Anglo-American legal systems. Moreover, implicit in this right is the self-evident truth that government is the servant of the people, and not the other way around. Understanding the crucial role that the right to petition plays in free governments, our Founders enshrined it in the Constitution so that future generations might enjoy the blessings of liberty.

Nonetheless, growing weary of receiving complaints regarding slavery during the antebellum era, the federal government took the position that it had no duty to respond to or even read petitions. Moreover, the government has enacted rules which allow for sanctions against parties bringing so-called frivolous lawsuits. All of these rules and doctrines have swept away those components of the right which history has taught us is necessary for liberty, and in so doing eviscerated one of our constitutionally mandated protections from government interference. As in all of these chapters, we shall see that the culprit has been a push for larger government and unconstitutional legislation. Only when our rights, especially the right to petition, have been cut down, can government gain complete control of our lives and fully sate its thirst for power.

141

The Right of the People over Their Government

The right to petition the government for redress of grievances is one of the oldest and most well-established rights in our legal history, leading the prominent lawyer Norman B. Smith to call it in 1986 “the cornerstone of the Anglo-American constitutional system[s].” The development of the right to petition paralleled an increasingly stable government in medieval England. Rather than use warfare and coercion to effectuate political change, barons were able to petition the King peacefully to redress their grievances. In fact, petitions became an early form of legislation, as laws would typically be submitted by Parliament to the King in the form of petitions to adopt a particular policy. Moreover, the political stability offered in part by the right to petition was an essential component in the development of the modern state as we now know it. As historian Joseph R. Strayer, who taught me history when I was an undergraduate, once noted,

In any political unit where there was some stability and continuity, one could expect that there would be efforts to create judicial institutions which would improve internal security and financial institutions which would provide the revenues necessary for defense against an external enemy.
¹

Such institutions are indeed the proper role of government and were particularly necessary amidst the violence of the Middle Ages.

The alternative to the right to petition was a violent regime change. When grievances go unanswered, history demonstrates that the aggrieved will inevitably seek to overthrow those in power. The English were acutely aware of the role that the right played in maintaining a healthy political system: “To traduce such petitioning [is] a violation of [royal] duty, and to represent it to his majesty as tumultuous and seditious is to betray the liberty of the subject, and contribute to the design of subverting the ancient legal constitution of this kingdom, and introducing arbitrary power.”
²
Many historians posit that Britain was able to avoid the bloody revolutions on the European continent in the eighteenth and nineteenth centuries because the right to petition secured for the people a participatory role in government. Thus, the stability of the political system was largely based upon the ability of the King's subjects to request that certain actions be taken, and the corresponding expectation that the King would respond to those petitions and evenhandedly redress their grievances, and enhanced by the transparency that petitions necessarily brought about.

142

The right to petition was also essential to the development of popular sovereignty. This theory holds that, in the words of Benjamin Franklin, “the rulers are the servants and the people their superiors and sovereigns.” The right to petition furthers popular sovereignty by making the government accountable to the people for all of its wrongs and misguided policies; petitions are not mere prayers or requests, but demands made by the masters (the people) to their servants (the government). If, however, the people were the servants of the government, then the government's interests would always be superior to those of the people, and it would be oxymoronic to demand that the government redress its violations of the people's natural rights. President John Quincy Adams succinctly stated the role that the right to petition plays in our political system: “The right of petition . . . is essential to the very existence of government; it is the right of the people over the Government; it is their right, and they may not be deprived of it.” Thus if we lose the ability to petition the government, we also lose our right to demand that the government protect our freedoms instead of merely enhancing its own power.

One of the most essential features of the right was that the people remain immune from punishment for petitions made to the government. The most important event in securing this component of the right was the famous Seven Bishops Case. During the seventeenth century, the English Parliament seriously curtailed the rights of Catholics to participate in government. As a response, in 1687 the Catholic monarch King James II issued his Declaration of Indulgence which negated those restrictions, and later demanded that the Declaration be read aloud during Protestant church services. The predominantly Protestant English citizenry nonetheless perceived this action as an encroachment upon the sovereignty of Parliament and an initial attempt to re-establish Catholicism as the state religion. Believing the command to be an illegal exercise of authority, a number of senior Anglican bishops, including the Archbishop of Canterbury, petitioned the King, requesting that they be exempt from the duty to read the Declaration. This nationally published request outraged King James, who responded by charging them with the crime of seditious libel, “written or spoken words . . . that tend to . . . embarrass, challenge, or question the government.”
³
Doesn't this sound eerily like the Alien and Sedition Acts of 1798 and the Espionage Act of 1917? History repeating, again.