Saturday, May 11, 2013

"To what daring usurpations must they have looked, when it was deemed necessary to secure freemen the privilege of keeping and bearing arms?"

"It will be recollected by the committee, that the preceding section contains an enumeration of the powers designed to be intrusted to the Congress of the United States. Would it not be a most singular inconsistency for men of very inferior perspicacity and intelligence to those who framed the Constitution of the United States, who should be engaged in a work of such deep and momentous importance as that of preparing a form of government for a free people, who were jealous and watchful of their liberties, in order to form a government of limited and defined powers which should be perfectly secure from abuse? First to enumerate, with care and accuracy, the several powers intended to be intrusted to the representatives of the people--yielding to the well-founded jealousy entertained of the propensity of man to abuse delegated powers, that the very singular mode should have been adopted to confer new and more extensive powers, by prohibiting, except under peculiar circumstances, or for a limited time, the exercise of some of the most important powers, expressly delegated, or resulting by necessary and unavoidable implication, from powers thus conferred. Sir, there is no rule of construction; no principle of reason which is not opposed to such a mode of imparting power. I know I may be met with the objection, that it is from this clause that Congress derives the power to suspend the writ of habeas corpus. To which I answer, that Congress derives from this clause no power over the writ of habeas corpus; that it was designed to furnish a rule of construction, to prevent the abuse of power by suspending this writ, on which the personal security and liberty of the citizen so much depended. The people of this country had not long shaken off the yoke of a foreign tyrant. They had had many painful evidences of the abuse of power by the British Government in suspending the great and efficacious writ. But can it for a moment be doubted that Congress has the constitutional power to suspend the writ of habeas corpus? But for the prohibition contained in this section on the exercise of this power, it might have been very much abused. Are not the powers delegated to Congress, in their nature sovereign? Is not the power to declare war a high sovereign power, confided by the people to their representatives? Is not the power to create tribunals inferior to the Supreme Court expressly given? Is not the whole judiciary of the United States organized by an act of Congress? Are not the forms of writs, and the rules of proceeding, prescribed by Congress? Can it be at all doubtful that the power which, under the constitution, prescribes the rule of action; in other words, gives the law to the courts and the people, when the public interest demands it, can suspend even this highly important and remedial writ? This was known to the Convention; the prohibition was wisely inserted, as a necessary guard to the liberty of the citizen.

"Again, it may be contended that, from the 10th section of the same article, which contains nothing but restraints and prohibitions upon the exercise of certain powers by the States, that they, when actually invaded, or in such imminent danger as will not admit of delay, derive the power to keep troops and ships of war, to enter into compacts with each other, with foreign powers, and even to engage in war. Not so, sir. It serves merely as a rule of construction, as an additional evidence of the jealousy of the people of this country of their rights and liberties, and of the propensity of man to abuse power when intrusted to him. Not a right is conferred on the States by this section. The States, in relation to the General Government, and in reference to their defence, occupy the same ground as individuals. Whenever a government is unable to defend the citizen, the right of self-defence, a natural right, recurs to him; so of the States. When the General Government is unable to defend the States, the natural and inalienable right of self-defence reverts to the States, and authorizes them to defend and preserve themselves.

"Shall I be permitted to invite the attention of the committee to the amendments to the Constitution of the United States, articles first and second? These articles contain prohibitions of a very singular character, on the exercise of powers by Congress. I confess that I have never seen these articles without regret. I have considered them as disgraceful to the high and lofty character of the American people. I presume, if a convention were now called, to frame a constitution for the people of the United States, that, instead of embodying a few general and fundamental principles, contained in a little pamphlet like this, [holding the constitution in his hand,] it would require a large folio volume to contain the necessary restrictions and prohibitions on the Government against undue and unwarrantable exercise of power. What are the prohibitions in these articles? "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; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. 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." I ask the committee to pause for a moment and to reflect on the character of these prohibitions. What must have been the jealousy of those who deemed it necessary to guard against the abuse of power, by such restrictions, on a Government of limited, defined, and delegated authority? Under what pretence could Congress dare to interfere with affairs of religion--with the freedom of speech or of the press? Under what state of things could it be presumed to be necessary for the sovereign people of the United States to retain to themselves the poor privilege of assembling peaceably to petition, not their sovereign lords and masters, but their public servants and agents, for a redress of grievances? To what daring usurpations must they have looked, when it was deemed necessary to secure freemen the privilege of keeping and bearing arms? But, sir, constitutional securities against the abuse of power, of delegated and limited power, seem to be but beautiful and splendid illusions."

- U.S. Rep. James Johnson, of Virginia, Feb. 10, 1820, [Abridgment of the Debates of Congress, from 1789 to 1856. FROM GALES AND BEATON'S ANNALS OF CONGRESS, FROM THEIR REGISTER OF DEBATES; AND FROM THE OFFICIAL REPORTED DEBATES, BY JOHN C RIVES. Pgs. 545-46]

No comments: