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?

Endnotes:

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

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
  • Debbie

    Since the beginning of time, guns, spears, knives, etc have been around to protect one's self. How do you think the Civil War, World War I & II, the Korean War, Afganistan, Desert Storm, etc. were able to fight for our country??? With weapons and that is how the U.S. Citizens are able to defend themselves from robbers, rapists, home invasions, etc. The gov needs to figure out how to stop selling to the evil people who attack people, rob them, etc. Not the average citizen. Leave the Constitution of America alone. It has worked for 200 years and now that we have corrupt officials, they want to change things. I say we get rid of all the gov officials and the people elect people who are honest and care about the U.S.

  • http://www.urghostwriter.com Benito Camarillo

    The concept of "shall not infringe" in the 2nd Amendment is not ambiguous nor difficult to understand, yet regulations galore in almost every State do just that. It would appear logical that an armed citizenry is a deterrent to would be dictators and their sponsors, just as the nuclear arsenal held by those countries who have them have been a deterrent to invasion. The Constitution is definitely NOT an outdated document --- it really is capable of giving us a marvelous freedom -- unless we simply let people usurp its authorities. As for a muslim as head of the CIA --- PLEASE read the "Koran" and Shariah law and stop ignoring the fact that someone of the muslim ideology has the approval to lie to deceive "infidels" (everyone other than a muslim) and set them up for when the time is right for them to "convert, subjugate or kill" the infidel. What part of "there should be NO muslims residing in the USA", much less being granted US Citizenship -- because their oath of allegiance is invalid as violated by the tenets of their ideology.

  • Greg

    So, now what do we do if we have a rogue democrat majority corrupt congress on the side of the rogue democrat corrupt president?

  • NoMoreMarxistsInDC

    The "Dick Act" of 1902 prohibits ANY gun control laws. The Dick Act of 1902 also known as the Efficiency of Militia Bill H.R. 11654, of June 28, 1902 invalidates all so-called gun-control laws. It also divides the militia into three distinct and separate entities.

    ** SPREAD THIS TO EVERYONE **

    The three classes H.R. 11654 provides for are the organized militia, henceforth known as the National Guard of the State, Territory and District of Columbia, the unorganized militia and the regular army.

    The militia encompasses every able-bodied male between the ages of 18 and 45. All members of the unorganized militia have the absolute personal right and 2nd Amendment right to keep and bear arms of any type, and as many as they can afford to buy.

    The Dick Act of 1902 cannot be repealed; to do so would violate bills of attainder and ex post facto laws which would be yet another gross violation of the U.S. Constitution and the Bill of Rights.

    The President of the United States has zero authority without violating the Constitution to call the National Guard to serve outside of their State borders.

    The National Guard Militia can only be required by the National Government for limited purposes specified in the Constitution (to uphold the laws of the Union; to suppress insurrection and repel invasion).

    These are the only purposes for which the General Government can call upon the National Guard.

    Attorney General Wickersham advised President Taft, "the Organized Militia (the National Guard) can not be employed for offensive warfare outside the limits of the United States."

    The Honorable William Gordon, in a speech to the House on Thursday, October 4, 1917, proved that the action of President Wilson in ordering the Organized Militia (the National Guard) to fight a war in Europe was so blatantly unconstitutional that he felt Wilson ought to have been impeached.

    During the war with England an attempt was made by Congress to pass a bill authorizing the president to draft 100,000 men between the ages of 18 and 45 to invade enemy territory, Canada.

    The bill was defeated in the House by Daniel Webster on the precise point that Congress had no such power over the militia as to authorize it to empower the President to draft them into the regular army and send them out of the country.

    The fact is that the President has no constitutional right, under any circumstances, to draft men from the militia to fight outside the borders of the USA, and not even beyond the borders of their respective states.

    Today, we have a constitutional LAW which still stands in waiting for the legislators to obey the Constitution which they swore an oath to uphold.

    Charles Hughes of the American Bar Association (ABA) made a speech which is contained in the Appendix to Congressional Record, House, September 10, 1917, pages 6836-6840 which states:

    "The militia, within the meaning of these provisions of the Constitution is distinct from the Army of the United States." In these pages we also find a statement made by Daniel Webster, "that the great principle of the Constitution on that subject is that the militia is the militia of the States and of the General Government; and thus being the militia of the States, there is no part of the Constitution worded with greater care and with more scrupulous jealousy than that which grants and limits the power of Congress over it."

    "This limitation upon the power to raise and support armies clearly establishes the intent and purpose of the framers of the Constitution to limit the power to raise and maintain a standing army to voluntary enlistment, because if the unlimited power to draft and conscript was intended to be conferred, it would have been a useless and puerile thing to limit the use of money for that purpose.

    Conscripted armies can be paid, but they are not required to be, and if it had been intended to confer the extraordinary power to draft the bodies of citizens and send them out of the country in direct conflict with the limitation upon the use of the militia imposed by the same section and article, certainly some restriction or limitation would have been imposed to restrain the unlimited use of such power."

    The Honorable William Gordon

    Congressional Record, House, Page 640 - 1917

  • http://www.UncommonSenseNow.com Tom Ballantyne

    Amen to the commenter who noted that the practice of Judicial Review was anathema to the founders. The idea that 9 justices in black robes, appointed by extremely partisan presidents FOR LIFE should decide for 310,000,000 free citizens what the Constitution means - or what laws passed by their duly-elected representatives comport therewith - is preposterous. Yes, there must be a check, and that check is, appropriately, the states, and the People who reside therein. Tyranny is tyranny whether exercised by a single dictator, by the 9th Circuit, or by the Supreme Court. Congress could be equally abusive or inept (see John Boehner), but that can be remedied via free elections (also, perhaps, a thing of the past given what we have just experienced).
    Tom Ballantyne - Author

  • http://www.thewarof2012.us George Rowe

    I wish more people were aware of the "Anti-Federalist Papers."
    The Anti-Federalist were more than any others responsible
    for our Bill of Rights.
    I hope you will read them.
    George

  • Pete Bennett

    SSI and Medicare would both "wither on the vine", without forced elimination, were they both funded by programs as Chile and Galveston, TX have been for years! Why are successful examples as these ignored in our search for better solutions? I have my answer, but you figure it out for yourselves. (Almost all answers are acceptable.)

  • http://www.UncommonSenseNow.com Tom Ballantyne

    Thank you! It is about time that someone recognized that ObamaCare was NOT the first time that the government had mandated that we purchase a product. That would have been Social Security and Medicare, just as was stated here. It makes no difference whether or not these were benevolent causes (were they?). All that matters (or that should ever matter) is that the Constitution provides no enumerated power to the federal government to involve itself in the lives of the citizens in this way. Our nation has become a giant bloated welfare state, and is everything that the founders sought to prevent with the Constitution. We must STOP debating the amount of taxes and the amount of welfare, and realize that NO amount of welfare is authorized under the Constitution. The Income Tax itself should be abolished as it clearly violated the intent of the Constitution as written. At least, however, it was done by amending the Constitution - thus making it legally proper. It should, however, be changed through that same Constitutionally-provided means, as it is the source of all that ails us!
    Tom Ballantyne - Author of Oh Really, O'Reilly! and Uncommon Sense...Apparently! et al.

  • Clay Ramsay

    Good article, with the exception of the lead paragraph chastising the president for stating that the Supreme Court has no Constitutional power of judicial review over Congress. The president was correct in this. The Constitutional Convention specifically considered giving that power to the Court, and it rejected it overwhelmingly. The Court assumed that power for itself without authority and against the expressed desires of the Framers in Marbury v Madison. The founders intended for the arbiters of Constitutionality to be the OTHER branches of government, i.e., the States and the People. They were not so foolish as to give to the Federal government the power to determine the limits of Federal authority.

  • Spense

    Excellent article Publius, very profound!

  • http://aol.com Charles W.

    What a shame SCOTUS said ObamaCare was legal. I have no idea what John Roberts was thinking. This is a disgrace to our Constitution and the Court. Citizens had better arm themselves because the government certainly is NOT going to protect us.

  • southernpatriot

    Requiring the ownership of guns. Sounds like Kennesaw, GA came to that understanding first, to great success.

    Congress to perhaps give us all a waiver to exclude us from ObamaTax, then vote it out. But what department or program which has begun, has Congress ever voted out? They are such wimps.

    Well, with Dr. Broun, R-GA now running in the US Senate seat being vacated by Chambliss, one of the six traitors, hopefully Broun will continue his promise not to support any legislation or any policy that was not:
    1. supported by the Word of God 2. supported by the U.S. Constitution 3. supported by his constituents.

  • http://freedomoutpost Gary M.

    @John Cunningham. Have no fear John. In keeping with Obama's intent to redistribute wealth, funds will be provided to you for the purchase of guns and ammo. State exchanges will be set up for you to purchase at your leisure. If you work for an employer who employs more than 50 people, your boss will be required to buy you the needed firearms and If they don't provide it, I know many Patriots who will gladly give you some of their own!

  • Michael J Nellett

    How about if we first eliminate giving children money from Social Security that they haven't paid in. Second, no one, who has NOT paid into the system gets to collect. Social Security Disability qualifications are that you are PERMANENTLY disabled. Drug addiction, eating disorders, and mild mental illness controlled by medication does not qualify. Thirdly, any medical professionals caught gaming the Medicare, Medicaid systems will have their licenses suspended indefinitely. We need to stop trying to punish the people who paid into the system, and quit allowing cheesy politicians to use it as a bribe for votes.

  • Karen

    We are living in times of tyrants and unbridled executive power because NO ONE will stand up for us! They are afraid that the race card will cause a civil war. They need to be thinking, not standing up will bring the unrest! UGH!

  • Eddie G.

    Let's have a little history lesson. The Founders when drafting the Constitution did not place their emphasis on the POTUS but the Congress instead. The POTUS is just one man capable of corruption as Obama currently is. Unfortunately they didn't count on a whole political party becoming as corrupt as a corrupt POTUS. It didn't seem probable at the time because they were men of honor versus dishonorable corrupt scum in congress today. Ronald Reagan even said the Founders never sacrificed honor although there were differences among it's members. But here we are, corrupt zealots ignoring the Constitution and pursuing their ideology instead. What makes it so difficult is hags like Dianne Feinstein gets voted back in time and again by sheeple stupids on the left coast. I'd be stunned if for once California rid the nation of it's triple curse of Feinstein/Boxer/Pelosi. Not likely to happen because their voting constituency remain stubbornly stupid. California votes,we suffer.

  • 7papa7

    Maurice, I would have no problem if we abolish medicare and SSI as long as they return 100% of the money I put in along with the average interest over the years I paid into my account. I could have done a much better job than they did.

  • http://gmail.com John Cunningham

    I hope the Government doesn't require me to buy guns and ammo. I can't afford it. Guns have gone so far up in price, I can barely afford the ammo I have for the guns I have now.

  • Peg

    For the person who said John Brennan, should not be director of the cia, I agree it is a bad pick, but not because he is a Muslim. If we take away his freedom of religion, then we jeprodize our freedom. While I don't agree with the muslim religion, I think their our other reason to regret his selection. I strongly diagree with the actions of the westboro baptist church, and I am a babtist. I will defend their right to assemble, I will also try my best to override their tirade at military funnerals. But I would not stop them from being there, same principle.

  • Maurice

    If we abolish SSI and Medicare what will you do with people who have paid in? Tough love. Sounds like it. Of bad. Go to a homeless shelter ohave your church people get you you medicine, health services.