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://5 K

    The government controled "Miltia" may be required to buy arms but "declaratory and restrictive clause" "Article II" provides only that in order to "well regulate" the governments' "Militia", "the right of the People to keep and bear arms, shall not be infringed". Only under these conditions is the "security of a free State" insured.
    Further study:

  • Hope Peter

    The reason the Social Security is broke is because the government has"borrowed " from all these years. It has been used as a huge piggy bank. If this program had a band on it we would be able to sustain it.

  • Grey Wolf

    I am to a point that i think we just need to once again hit the reset button and restart the country and government ...this was done in 1776 and we have gone to long without doing it again so if it needs to be done i say we do it...and take the original Constitution and use it as the frame work once again then we go from there and see if we can do it right this time

  • manuel a

    the u.s serpream court ruled police do not have to protect you . look it up so my ? is why do they get paid ? and now theres rumors the they want to federalize the the countries police force .

  • JJM123

    Rocky - Yes, we have invested into our own Social Security and Medicare accounts. However our investment was into a giant Ponzi scheme relying on many other contributors to fund it once we retire. When 1st established, there were enough contributors still working when the elderly retired. The ratio of contributors vs recipients has decreased significantly and will require major restructuring if my 21 year old is likely to regain any of his contributions without tax dollars thrown in.

  • Rocky

    "...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!"

    The Federal Governemnt does Not in Any Way pay Anything, on our behalf, into Social Security nor Medicare!

    The Employee pays one half and his Employer pays the Other half !

    Just Where do People Come UP with some of this rot, anyways ?

  • Quis Percusit

    So I guese what the article is really saying is that the currently sitting Federal government is full of bovine excrement as is the fraud in the oval office and all of his appointees; and that the mainstream media consists of nothing but pathological liars.

  • huntingfreedominAmerica

    I've read some letters on how Social Security is a program that we had no choice into. If my friend from New York is on this site and reads the comment please send out the info again it may be a better time for it. I have send copys of letters sent to congress in the years Social Security was set up that said it was unconstitution and could not be forced on the American people that wished not to perticipate in. You don't have to pay into SS however you could not draw from it. Because no one challenged it people only thought it was law. http://www.ssa.gov/policy/docs/ssb/v50n1/v50n1p5.pdf

  • Robert

    Our Congress and elected officials seem to point to Europe as the proper way that America headed. However if they were to get more specific about where in Europe we should take notice of the way they run their country that's another thing. There is one nation in Europe that has exceedingly low crime rates, has a very high standard of living, is respected throughout the world, and has never successfully been invaded.

    Switzerland it meets all the above criteria. There gun violence is almost nonexistent their crime rate is extremely low per capita. Now why should that be the case, are they inherently more intelligent, more religious, or maybe they're aliens from another planet. Those are all wrong answers for the most part their population on a whole is much better educated than ours but that's only because our government wants his people to be stupid. The main reason that Switzerland has these statistics on crime is due to the military! 99% of the homes in Switzerland have military assault rifles, ammunition, and in many cases explosives at that is the person specialty. They are all members of the military and registered in the reserves. The people Switzerland are encouraged to go to the gun ranges, of which they have more per capita than any nation in the world, and they even furnish the ammunition.

    Our founding fathers naturally had no firsthand knowledge of what Switzerland would become what they did know they did not want America to suffer under the rules laid down by European monarchs that is why they made every man a member of the militia in the Constitution gives the right to the people by the power of God to keep and bear arms and does present the groundwork for requiring all able-bodied persons to be compelled to purchase arms and ammunition and become proficient in their use.

  • huntingfreedominAmerica

    As long as Obama is in office we will be put in front of the bus to be drove over. We have a few congresspersons that would do something but the problem is just that there few. Obama may know that truth about the Constitution and that is why he wants to rewrite it change the Bill of Rights to fit his agenda. There is not one person in his cabnet that is not supported of the Muslin Brotherhood. Which has been on the list of enemies for over 30 years. It's no mistake Obama is doing the things he's doing. It's been well planned and set in works by the last 65 years from our own Presidents and Surpeme Court Judges taking apart of the Constitution line by line. If America is disarmed the only power will be held be the Muslim Brotherhood. As we speak Obama is pushing another Muslim for the director of the CIA who I believe is setting up all the shootings in America to set a agenda to disarm the American people.

  • Rudy McGillvray

    A reply to Kevin O'Brien, from a person 'on SSPayments and staying comfortable, but just: Sir, I agree w/you, but before you dismantle Social Security I think you should back off from Minimum wages which will be increasing employment for young people: when a boss type individual can pay a youngster, what he's actually worth, I swear, because of minimum wage,
    I was 'unemplyable' except for two things, my youth and exuberance and my ability to learn, I have always been mechanicly (not very good on spelling inclined, and for one reason or another, I can see the triangular possiblities available in the use of fittings to enable drainage of, Mistake was my middle name, but I never made the same one twice on the same job. Please excuse the rant, but for some reason I am feeling it necesary to do so.
    I apprenticed to my father-in-law as a plumber, I suffered that apprentiship for 5 years. I can't say I enjoyed every minute of that stuff,
    but, I did learn how to think in a logical manner about how water (the basis for our human existence) flows. Waste water from plbg.fixtures, should run thru smaller pipe a Lavatory or Bathtup/shower combo should flow thru 1-1/2" dia pipe, the lavatory should vent thru a 1/2" tube which ties into a 3/4" vent /thru roof or air supply. Water closets need a slower flush cycle to drain thru a smaller dia pipe, which I see as a 2" - 1/2" pipe with a mixiing of waste and water which happens in the fixture, If proper tech is put to correct use the use of smaller pipe and flexible Holes thru timbers, be it joists, or beams, or studs, would be much smaller, more angled to suffer contraction of the home.
    I think that Plumbing, is probably the highest calling a private person may have. to do excellence in drainage I feel is special, an efficiency of flow, like thought should flow thru time.
    Later dudes, I gotta eat or something. Rudy the Thinker

  • Craig Driver

    One thing which history repeatedly shows is people who have been oppressed long enough by evil men and women will resort to war by any means to throw off the burden. We presently have men and women in government and outside of it who desire to burden us. They may or may not succeed. But if they do there will come a day when their rule over us will be thrown off. Whether it be sooner or later will depend upon how much abuse the people will tolerate.

  • Wm. Tomlinson

    Regardless of the "ignorance" or "wisdom" of a Harvard man, the Supreme Court, 9 unelected men/women appointed ostensibly for life, DO NOT have the right to interpret the constitutionality of a law.

    That right is reserved to the citizenry. That responsibility is reserved to the citizenry. The Marshall Court usurped that right. Jefferson railed against it. Jefferson was right. We live in an oligarchy because of the Marshall court. Anyone who defends the right of the SCOTUS to interpret our laws emasculates the citizen.

    The Constitution was written for the common man. If a man can not understand simple language, he probably needs to be taken care of by the state. Not so a free man.

  • Jersey Oathkeeper

    As Chief Justice Roberts said, Obamacare is a tax. He specifically said it does NOT fall under the Interstate Commerce Clause. He did this for a reason. After all, if Obama can force us to buy insurance than why not mandate buying a Chevy?

  • Mike Wilson

    I agree with much of the writers views,, however I strongly oppose his view on social security and medicare..for almost 50 years I was required to pay to the Fed. Gov. a portion of my income to be held in escrow for my
    retirement at age 65.. I was not given a choice in doing ths. It was to be for my medical care and part of my income after I reached a certain age.
    These are not entitlements,, they are debts owed by the holders of My money,, to me.. It has been stolen,, and done so by Lyndon Baynes Johnson

  • James Maxwell

    An an American I have the right to keep and bears arms. But I also
    have the right to not do so as I desire. As a ret USAF/NCO I saw
    the results of not owning weapons when enemies attack people. I
    saw the results in WW II, Korea, Viet Nam and many battles since.
    As an American I will keep arms and munitions handy in my home.
    Since the Supreme Court said that police did not have to prevent crime
    I will protect and defend myself and my family from enemies and
    criminals. To that end all members of my family will be taught how
    to used firearms and the safety that is necessary to insure they are
    well able to defend theselves if I am away from home at the time.
    In Texas I can carry a weapon in my vehicle for my personal
    protection and evne have a CCW permit to carry one on my person.
    I see lawyers and whining liberal scounderasl attempting to circumvent
    the Consitituon and make it irrelevent in the world today but owning
    a firearm and munitions is what makes and keeps up a free society.
    That is why our founding fathers put that in the Consititution in the
    beginning. They knew the temptation of politican to try and destroy
    our naiton to establish a dictator in place of a freely elected leader.

  • Kevin O'Brien

    Lloyd Revalee - " If that would be considered as a legitimate law, then what is to prevent our government from ordering us to purchase any and every thing they want to, whether we want or need it?"

    The article answers that exact specific question, and more.

  • Kevin O'Brien

    While I agree with the constitutional analysis, I do not agree with the author that Social Security and Medicare should be "dismantled in an orderly fashion". That's too much and going too far.

  • lloyd revalee

    The Second Amendment to our Constitution says: "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 take this to mean that the Citizens of these United States have the right or own guns and ammunition if they so desire, but does not say that our government has the right to order them to do so. If that would be considered as a legitimate law, then what is to prevent our government from ordering us to purchase any and every thing they want to, whether we want or need it? I consider the law referred to in this article to be illegal and unconstitutional, and has no bearing or legal authority on the citizens of our country. Limited government was what the Founding Fathers had in mind, and that is what we are entitled to. We should demand that our government keep its nose out of our private affairs, the affairs of workers and employer's, and especially the affairs of other countries. We can no longer afford to support the bloated government we now have, let alone try to support the entire planet. Bring our troops home, and put them on the border to repel invaders. Remove all those who have invaded our country in the past, and send them back to whence they came. If we do not act soon, we will be not better than Mexico, Africa, or any of those other countries our government seems so anxious to help. it is way past time the they begin devoting their time to those who they have sworn to represent, the American people.

  • David Weakland

    Very good article with references.