Why Congress May Lawfully Require Citizens to Buy Guns & Ammunition, But Not To Submit To Obamacare

Harvard Law School was embarrassed recently when one of its graduates, the putative President of the United States, demonstrated that he was unaware that the supreme Court has constitutional authority to declare an act of Congress unconstitutional.1

And after reading a recent paper by Harvard law professor Einer Elhauge, one wonders whether the academic standards (or is it the moral standards?) of that once great school have collapsed.

Professor Elhauge says in “If Health Insurance Mandates Are Unconstitutional, Why Did the Founding Fathers Back Them?” (The New Republic, April 13, 2012), that Congress may force us to buy health insurance because in 1792, our Framers required all male citizens to buy guns; and in 1798 required ship owners using U.S. ports (dock-Yards) to pay a fee to the federal government in order to fund hospitals for sick or disabled seamen at the U.S. ports.

Oh! What tangled webs are woven when law professors write about Our Constitution!

I have already proved that Art. I, Sec. 8, next to last clause (which grants to Congress “exclusive Legislation in all Cases whatsoever” over dock-Yards and the other federal enclaves) is what authorizes Congress to assess the fee from ship owners who use the federal dock-Yards. See: Merchant Seamen in 1798, Health Care on Federal Enclaves, and Really Silly Journalists.

Now I will show you where the Constitution grants authority to Congress to require adult citizens to get armed!

The Constitution Authorizes Congress To Require Citizens to Buy Guns and Ammunition.

In 1792, Congress passed “An Act more effectually to provide for the National Defense by establishing an Uniform Militia throughout the United States”.2 This Act required all able-bodied male citizens (except for federal officers and employees) between the ages of 18 and under 45 to enroll in their State Militia, get a gun and ammunition, and train.

Does Congress have authority in the Constitution to require this? Yes! Article I, Sec. 8, clause 16 says Congress has the Power:

“To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;” [boldface mine]

That is what authorizes Congress to require adult male citizens to buy guns and ammunition.

As Section 1 of the Militia Act of 1792 reflects, the “Militia” is the citizenry! Our Framers thought it such a fine idea that The People be armed, that they required it by law! See, e.g., the second half of Federalist Paper No. 46 where James Madison, Father of Our Constitution, speaks of how wonderful it is that the American People are armed – and why they need to be. 3

So! In the case of Congress’ requiring adult citizens to buy guns and ammunition, Congress has specific authority under Art. I, Sec. 8, cl.16.

In the case of Congress’ requiring ship owners who use the federal dock-Yards to pay the fees to fund the marine hospitals at the dock-Yards, Congress is granted by Art. I, Sec.8, next to last clause, a general legislative power over the federal enclaves, such as dock-Yards.4

But for the country at large, Congress has no broad grant of legislative powers. There, Congress’ powers are few, limited, and strictly defined. See: Congress’ Enumerated Powers.

Now, let us look at obamacare.

What Clause in The Constitution Authorizes Congress to Force Us into Obamacare?

Nothing! Over the Country at large (as opposed to the federal enclaves), Congress has only enumerated powers. These enumerated powers are listed in Art. I, Sec. 8, clauses 1-16 and in the Amendments addressing civil and voting rights. No enumerated power authorizes the federal government to force us into obamacare.

So, Professor Elhauge introduces a nasty bit of poison. He says:

“Nevermind that nothing in the text or history of the Constitution’s Commerce Clause indicates that Congress cannot mandate commercial purchases.”

Do you see what he is doing? Surely he knows that obamacare is not authorized by any enumerated power. So! He asserts that nothing in the commerce clause says Congress can’t force us into obamacare. He thus seeks to pervert Our Constitution from one of enumerated powers only, to an abomination which says the federal government can do whatever it pleases as long as the commerce clause doesn’t forbid it.

Furthermore, what he says is demonstrably false. The Federalist Papers & Madison’s Journal of the Federal Convention show that the purpose of the interstate commerce clause is to prevent the States from imposing tolls & tariffs on articles of merchandize as they are transported through the States for purposes of buying and selling. For actual quotes from Our Framers and irrefutable Proof that this is the purpose of the interstate commerce clause, see: “Does the Interstate Commerce Clause Authorize Congress to Force Us to Buy Health Insurance?”.

Obamacare is unconstitutional as outside the scope of the legislative powers granted to Congress by Our Constitution. And it does much more than force us to buy medical insurance. Obamacare turns medical care over to the federal government to control. Bureaucrats in the Department of Health and Human Services will decide who gets medical treatment and what treatment they will get; and who will be denied medical treatment. If you think the federal government is doing a great job feeling up old ladies and little children at airports, wait until they are deciding whether you get medical care or “the painkiller”.

Folks! The Time has come that we must recognize that social security and Medicare are also unconstitutional as outside the scope of the legislative powers granted to Congress by Our Constitution. We must confess that it is wicked to seek to live at other peoples’ expense! And when a People renounce Personal Responsibility – as we did when we embraced social security & Medicare – the federal government takes control.

Social security and Medicare are fiscally bankrupt. Obamacare, which will prevent old people from getting medical care, is the progressives’ way of dealing with the unfunded liabilities in these programs: Kill off old people by preventing them from getting medical care!

The Piper will be paid. Shall we pay him by killing off old people?

Or, shall we return to Personal Responsibility and dismantle (in an orderly fashion) the wicked, unconstitutional, and fiscally unworkable social security and Medicare programs?


1 Our Framers gave us an elegant system of Checks & Balances: Each branch of the federal government has a “check” on the other two branches. This is expressed primarily in the Oath of Office (Art. VI, cl. 3 & Art. II, Sec. 1, last clause) which requires each branch to obey the Constitution and not the other branches! The supreme Court’s check on Congress is to declare their Acts unconstitutional: See (in addition to the Oath) Art. III, Sec. 2, cl. 1; Federalist No. 78 (8th -15th paras); and Marbury v. Madison (1803).

Congress’ check on the judicial branch is to impeach and remove federal judges who usurp power (Federalist No. 81, 8th para).

2 Here is the URL for the Militia Act of 1792: Read it! And note how short it is. http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=394" alt=" Why Congress May Lawfully Require Citizens to Buy Guns & Ammunition, But Not To Submit To Obamacare " title=" Why Congress May Lawfully Require Citizens to Buy Guns & Ammunition, But Not To Submit To Obamacare " target="_blank">

3 In “The Patriot”, Mel Gibson’s character commanded a South Carolina Militia – civilians who took up arms against the British. Everyone knew that “the Militia” was the armed citizenry – farmers, trappers, shopkeepers, clergy, etc. It still is.

4 Attorney Hal Rounds provides fascinating additional information on this issue: “Ships will dump sick sailors wherever they may make landfall, and the locals have the burden of dealing with the victim. Their care then raises the legal right to compensation for their services, which the law of nations allows to be levied against the nation, not just the owners, of the ship.” For Mr. Round’s full comment see the Postscript of April 7, 2012 here.

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About Publius Huldah
Lawyer, philosopher & logician. Strict constructionist of the U.S. Constitution. Passionate about The Federalist Papers (Alexander Hamilton, James Madison & John Jay), restoring constitutional government, The Bible, the writings of Ayn Rand, & the following: There is no such thing as Jew & Greek, slave & freeman, male & female, black person & white person; for we are all one person in Christ Jesus. She also writes legal and Constitutional commentary at her site: Publius-Huldah
  • http://MSN CItizen Rights

    Very well done. A excellent understanding of the Law of the Land. Article Six United States Constitution. God Speed.

  • Colossus

    Judicial Review much?

  • Maurice

    Wow. You guys are awesome. Not sure why we need Supreme court. Just abolish them. How's that impeachment thing worki g out after 4 years. Pretty good huh. Don't let a 28% approval rating get you down. Buy one of those excellent vaporizers advertised on this blog. Very excellent for impeachment blues. HAHAHHAA. LOL

  • nmgene

    I have paid in to social security for 50 years, I wont get enough to even slowly starve. Be lucky to be able to rent a one room place. And still eat. You want to get rid of Social Security that is fine with me but first you give me all of my money back with Interest. This would amount to about 3.5 million. The Government is a scam and needs to be replaced with people who truly believe in our Constitution.

  • http://whatisacaptcha? paul thomas

    wow so that is a captcha

  • http://whatisacaptcha? paul thomas

    what is a captcha?

  • geneww1938

    Oh that every citizen were to read and understand this excellent article.

    Likewise, that I could understand how John Brennan could be picked to head the Central Intelligence Agency when he is a known Muslim.

  • http://freedomoutpost.com Elmo Lovett

    So what is congress and the American People waiting for, the Constitution
    gives us the authority to cleanse the white house and obama's regime.

  • Chicot

    If the federal government can assess a fee for the health care for personnel who become sick from other countries and need medical care here in the US, then why arn't they assessing mexico and other countries for the health care given to all the illegal emmigrates who run across the border for health care which the tax payers are having to pick up the tab on.
    I truly believe every person in the US should have a gun for their own protection from the criminal elements and the government agencies who believe the can control and take over their freedoms..

  • http://none Lou

    Very well presented indeed. SS and Medicare need to be reformed at a gradual pace. I'm open for any reasonable option, either a slow faze out or means testing or the Ryan plan, but it all has to start with holding the house and taking the senate. We can't allow the statists to control the conversation.

    Let's get busy, even the firewall we have in the house is full of RINOS.

  • stRanger

    Tim, I am roundly sick to death of everyone wanting to eliminate the Social Security I was forced to pay into for decades. As a recipient I am not asking for anything other than the return of my own money. Money that was supposedly invested for me. Over the years the SS withholding left little to invest on my own behalf. I was stuck with it.

    Just prior to the last election Conservatives, the Republican Party and Mitt Romney committed political suicide by shrieking about the "ENTITLEMENTS" that needed to be cut. I know people who had committed to Romney who were suddenly frightened upon hearing that Romney et al were in favor of cutting out their source of income.

    Just how stupid can one get? They bailed out on Romney and went the other way purely for survival.

    Start the dialogue about Social Security reform in terms other than leaving the elderly retirees dangling in the financial wind.

    You'll be doing us ALL a favor.

  • Anthony

    we all need our guns, If we want to stay free. where my first comment ?

  • Hiram Davis

    These twisters and tanglers will now claim that HS is our militia. I know it's an outrageous claim, but so far, outrageous has not held them back.

  • RON G

    Excellent article except where social security and medicare are concerned. Those are both programs that we have paid into (at least those who work for a living have). To take that away from those who have paid into it would be the same as taking away their 401k or savings account. Now those who have not paid into it should not be receiving one cent of it.

  • Mitchina

    omg... only needed to read the 1st line: SCOTUS's entire purpose was to make sure the feds didn't over step their authority expressly declare WHEN they were acting against the constitution. Then again, I can see his confusion being that SCOTUS has done a lot of re-writing of the constitution in their "interpretations" of what laws meant. All of a sudden, Obamacare is constitutional as a tax when in fact everyone supporting called it a penalty. The gvt cannot penalize you for not buying a product... but they have and now only God knows what else they will get away with. They are no longer a gvt in check.

  • http://freedomoutpost Glenn Hutchinson

    Sure we should dismantle social security and medicare as long as we the people who have been forced to pay into these get a full refund plus interest on the money that was deducted from our paychecks.
    This stealing from us to support a bunch of deadbeats should have never happened.

  • Jim

    I think this is very interesting article. I found I had to read it very carefully to fully understand it and I was glad I did. I do remember the Federal Government supporting gun clubs that did target shooting and had meets with free ammunition, in which my dad and I participated in. The government even provide high power arms for a yearly training at a long distance range. What a change!

  • Pat

    I loved it, you kicked all his stupid liberal logic under the bus! Isn't it strange that when a conservative says something, liberals want all the documentation and proof of every item before they will even consider the information but when they make a statement it is "unquestionably true"? Documentation? None required, it is a true statement, how dare you even question it?

  • John Vettel

    I am retired military and dependent upon Social Security and Medicare. The promise of "lifetime Health Care" for me and my family was converted to Medicare without my permission.

    I am in favor of dismantling these programs, so long as those now protected by them, including me and my family, are not harmed. I do not feel that is selfish; I think it is only fair.

    These programs never should have been enacted. There is no provision in the Constitution for the Government to take care of people's basic needs. However, I do believe in both insurance and charity, and feel that between the two, we can get along just fine.

  • Kathae

    In that case, what gives them the right to ban guns if everyone is supposed to have one?