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
  • steve

    I will not abide by Obama care, will not pay a fine and will not under any circumstance, be arrested cause of this. Grew up in the 50's before people lost their ways and refuse to submit to the BS. Better dead than a slave.

  • Herr Gaijer

    Has anyone checked this professors credentials. And Let us face it 'Hav vard' is just a once private school for the Wealthiest New England-ers that got a ton a Liberal money and word of mouth.
    I have not been Impressed by any of their Alumni.

  • Greg137

    First off, Obama is not a U.S. citizen, any law passed byu him is null and void!
    Secondly, Obama only pretended to pass Obamacare..
    Finally, That while the Supreme Court a majority wrote in their opinion to unphold Obamacare, A Supreme court majority also wrote in their opinion that the Federal Government can never ever compel anyone to buy anything ever.
    Catch 22 is that Obamacare has no funding mechanism and is already set to go bankrupt in 20 years...
    Catch 23-is that if the federal reserve itself should collapse, all laws funded by the federal reserve(including Obamacare) might as well collapse, too! A federal reserve that collapses is proof that the government abused its finances, so all things funded by those finances are essentially, null and void as there will be nothing to fund them with...
    A great many cases can be made against obamacare in court,, so be watchful and feel free to pounce when the situation presents itself..
    Support any citizens grand jury to impeach Justice Roberts( Roberts did nothing to stop Kagan, when his job should have beeen to recommend that she not participate citing a conflict of interest), Sotomayor, or Kagan(Kagan should have recused herself for being personally involved with obamacare) as they are all yes votes for obamacare.. Sotomayor and Kagan were both appointed by a president that is not a legal citizen, and they should at least be examined before an ethics comittee...
    Re-allocate your resources America! Try keeping tabs on anyone who doesn't vote to Repeal Obamacare! They need to be removed form office... Make sure your state has voter ID laws.. Make sure that your state has tested any voting machines to make sure the work properly...

  • JVB5058

    Everyone operates on the assumption Obama FOLLOWS the Constitution, as do all the liberals in Congress. THEY DO NOT.

  • http://mozilla robert e lee


  • http://mozilla robert e lee

    AS AMERICA'S FUHRER HAS STATED ON THE RECORD;the Constitution is flawed because it "tells me what I can ot do", instead of what I must do;; he is fascist dick-tater; IMPEACH THE TRAITOR.

  • Rustytruck

    I'm totally with you Bobbi, I have refused to abide by anything Obama has to do with because he's an illegal and even Congress and the Supremes can't force me to go along with breaking the law, period. Obamacare, gun control, illegals getting amnesty, it's all against the law. The only thing I can agree with is the E-Verify system and it doesn't matter if Obama signed it or not, that's something Congress can do by themselves. Obama and all his minions can piss off, I refuse to abide by any of it.

  • http://yahoo.com mr hester

    Seems funny to me that this legislation hasn't been declared unconstitutional because of the Equal rights amendment, how is it equal that the unions are exempt, congress is exempt and in the new amnesty bill foreign invaders are exempt, not only that some favored corporations, Obama care wavers in themselves are discriminatory,therefore illegal under u.s. law..

  • David F. Podesta

    The author states there is nothing in he commerce clause of the Constitution mandating citizens purchase Obamacare. Then he stated there is nothing to prohibit CONGRESS from mandating it. This begs the question of wether or not the 10th Amendment prohibits Congress from mandating commercial purchases. This amendment states that, "All powers not delegated to the United States by the Constitution, or prohibited to the states, are reserved to the states respectively, or to the people". It seems that the 10th Amendent DOES prohibit Congress from mandating commercial purchases. In fact. Congress unlawfully removed funds from the Social Security trust fund, which was supposedly inviolate, over the course of many years and never reimbursed any of those funds, which is why it is now on the verge of bankruptcy, Shouls Congress replace those funds the trust will be financially solvent for many, many years. Of course, if the president had kept his promise regarding job creation, those 25 million unemployed, would be employed, have healthcare insurance, and Obamacare would be a moot point.

  • http://None David R Finch

    There is no question in my mind that Obamacare is indeed unconstitutional. What makes it difficult is that the Supreme Court has upheld it, so it will now take a new conservative congress to overturn that law. The medical system in this country was broken, but Obamacare made it far worse. We need to repeal that law, then fix the parts that are broken.

    Also, Social Security and Medicare are, indeed, ponsi schemes. But we can not just cancel them. But there are proposals that will begin the process of reversing the trend toward bigger government. Unless we as citizens are willing to assume responsibility for ourselves, the problem will never be fixed. Just a thought.

  • Bobbi

    Because Obama is a usurper, not a " natural born citizen" as defined by SC definition in Minor v. Happersett, namely one born of Two American citizens and born on American soil, anything he has signed into law, etc is null and void.

  • R.J.

    The only thing I disagree with is Social Security INSURANCE. It is a govenment insured INSURANCE plan I payed into every working day of my life. I took it is my PERSONAL RESPOCIBILITY to make sure I payed into an INSURANCE plan for if I was disabled or reached an age when I could no longer work.
    Getting Conress to repay all the funds they STOLE from this INSURANCE plan makes more sense.

  • becky

    I can see getting rid of ALL Great Society programs - for those who have their entire working lives to provide for it, BUT that would require removing taxation so people can save for their old age. For those of us in our 50's now - TOO LATE. The federal government has had decades to stop stealing from the paychecks of the baby boomers - but guess what??? THE GOVERNMENT WANTED ALL THEIR WEALTH they were creating. So if you all want to stop the programs dead - then I want ALL my back money with decades of growth locked in - back. Enough to support me for my old age. And DON'T try to tell me there was no real growth and we don't deserve that much money. The very wealthy - you know the ones with inherited wealth - never lose money but grow and Grow and GROW it by percentages the real workers never see. So we expect that money made up - then you can have the programs gone. In the meantime, remove all pensions and health care for our thieving congress people. Retroactively. Let them all go get real jobs. Use that money to provide for the older people now.

  • Chesnut

    The problem with Seadragon's comments is that even though people paid into the SS and medicare scams, they elected politicians who were the worst managers and con artists for the programs. With nothing but good intentions, the outcome of these programs is a HUGE tax on society and rising generations. This is the real issue. Privatization such as existed prior to 1930 in the form of mutual aid societies where the "Tragedy of the Commons" (how much can I grab from the system for myself) was very uncommon, and mismanagement of resources was uncommon as well. People took care to maintain solvency and personal relationships and were generally satisfied with the private product: life insurance, employment insurance, accident insurance, social club where folks associated, knew each other and had the attitude of restraint only taking what was absolutely necessary, retirement benefits, spousal benefits etc. But no, the government had to get involved and became THE single payer system for the country putting the private sector out of business, and not because it was any better, far from it. The private enterprises felt they couldn't compete, then once monopolized and centralized, the government felt they could get away with anything they wanted as they politicized the program then ruined it, as with virtually everything the government touches.

  • http://www.linkedin.com/in/michaelrodriquez Michael Rodriquez

    Watching the lawyers USSC argue the Obamacare case it became obvious to me that the negative approach for justification revealed a bias already implicitly accepted as afait compli. No question showed a single concern for the fact our country is fiscally unable sustain servicing our current debt. The USSC should never be allowed to hear cases dealing with fiscalpolicy. What do they know about running anything? They just bankrupted your country and all the ignorant useful idiots can't get wait to get

  • Chesnut

    The ONLY way out of our mess is to get the 50 states to appoint direct lawmakers (Senators) like how the founders set up our constitution to run in the first place. Repealing the 17th amendment thereby giving real power to the states to check and balance the overreaching President and SCOTUS is as necessary as it is timely. The horsepower of the 50 states passing laws in congress is the ONLY way to push back to balance and the US Constitution.
    This idea needs support from all right minded citizens and needs support NOW!

  • seadragon

    This article was right on until he brought up medicare and social security. Talking heads and arm chair generals ALWAYS talk about things they know nothing about. S.S and medicare are NOT welfare. The people who worked all their lives EARNED it by PAYING into it. It is and was taken out of their paychecks. Funny tho how no one is talking about welfare or foodstamps being " broke." Further everyone knows the reason the pols are saying SS and medicare are, "broke" is because they ROBBED it blind. These politicians who stuffed their hog hoofs into SS should be made by law to liquidate every asset they personally own to PAY IT BACK. Then go to jail.Their " babyboomer" excuse/ lies are virually impossible. Republicans will NEVER win an election by talking about taking peoples EARNED social security and medicare away from them, especially right smack dab in the middle of a DEPRESSION. The libs must be laughing at the idiots.

  • A. Levy

    Does it really matter? Since being elected, the Marxist-in-Chief has made both congress and the Constitution irrelevant. And yet, not one of the elected lying crooks in congress has dared utter the word, IMPEACHMENT.

  • Dr. Larry Turrentine

    Every non-felon should have the right of firearm ownership and get training to safely keep, maintain, and use said firearm. Mental health issues need to be evaluated on a case by case basis. The potential tyrants at any level of government need to respect the freedoms and wishes of an armed citizenry. After all, some wise person, whose name I do not know recently posted that "an armed society is by definition a polite society!"

  • http://www.amazon.com/dp/B00AN6HN7Y Einstein

    If we follow the Constitutional reasoning for B0care as a reflection of the MiIitia act then we must be able to purchase a doctor and own him as well as a one time lifetime purchase of a Hospital plan with full coverage and no future costs. With No TAXATION ATTACHED!