by Bruce Eden –
The current hysteria by legislatures of blue states (communist states) within the United States to deprive certain members of a group—law-abiding registered gun owners—as a “knee-jerk” reaction to the Newton, Connecticut mass murder of innocent children and teachers is indicative of what the Nazi Regime did in 1938 to pass draconian gun laws prohibiting another group of people—Jews—from having or obtaining firearms. In 1938 Nazi Germany, a Nazi Party member was murdered. Based on the current Weimar Republic gun control acts made prior to the rise of the Nazi Party, it gave the Nazis an impetus to ban guns except for those who were members of the Nazi Party. It targeted Jews for total gun confiscation. And, we know the rest of the story where 6 Million Jews and other undesireables of the State were murdered by their government. And, over 12 Million innocent, law-abiding people in other countries were murdered by the Nazis.
Time and time again, we hear the legislators in blue states saying that they are “not violating our Second Amendment Rights or trying to confiscate/ban guns”. Legislators are inveterate liars. The Nazis said the same thing when they marched the Jews off of the cattle cars to the gas chambers. They said that they weren’t gas chambers, rather they are only “showers” for hygiene purposes. Do you believe today’s legislators any more than you believe that the Nazis were humanitarians.
Believe this: The 1968 U.S. Gun Control Act was written verbatim from the 1938 Nazi Weapons Law. Any politician supporting the 1968 Gun Control Act has or is committing felony Official Misconduct, as well as treason and sedition, for violating their constitutional oaths of office to uphold, support and defend the United States Constitution—which includes the Second Amendment that has been incorporated into the States by virtue of the Fourteenth Amendment. McDonald v. Chicago, 130 S.Ct. 3020, 561 U.S. 3025 (2010).
These are the similarities of the Nazi and U.S. Gun Laws: (1) Targeting of ordinary citizens, manufacturers and gun dealers, rather than criminals; (2) Requiring of any private person to prove himself fine/”reliable” before being “allowed” to own a firearm; (3) Presume that gun ownership is a government-granted privilege, regulated under commerce, and not a right; (4) Gives government unrestricted power to decide what kinds of firearms could or could not be owned by citizens. Defines “hunting or sporting weapons” as a special class; (5) Forces all firearms manufacturers and dealers to obtain a government license; (6) Requires all firearms dealers to record all sales and to turn over those records to police if business closes. Allows for police (ATFE, SS or Gestapo) inspection of records at any time; (7) Requires all firearms to bear a serial number and maker’s or dealer’s mark; (8) Requires all gun owners to identify where all firearms are in the house to allow for police or other government officers to enter the home (without warrant) and right to the location of the firearms to confiscate them; (9) Severely punish law-abiding gun owners for minor infractions of the gun control laws (e.g., many years in jail, heavy fines and penalties).
Gun registration is being proposed by legislatures, executive branches and the judiciary acting in concert to override the will of We the People. That’s because each branch of government has been infiltrated by the new Nazi Party and/or Communist Party (they are both the same; one is the Nationalist Socialist Party (Nazis), the other the Marxist-Socialist Communist Party). This new Nazi Party/Social Party is known as the American Bar Association and its various state bar association minions. Lawyers make up a large block of legislators in each legislature, including Congress. They work behind the scenes on committees proposing legislation. They testify before legislatures to pass laws favorable to lawyers. They are in the executive branch of government as law enforcement prosecutors, governors, and other executives. And, they dominate the judiciary branch. Lawyers inherently are socialists out for “social justice”.
Because of the Newton School “massacre”, the current lawyer dominated legislative onslaught of anti-Second Amendment/anti-gun/anti-ammo laws in the federal Congress and the various blue states, targeting an easily ascertainable group—“registered” gun owners. This constitutes an unconstitutional Bill of Attainder/Bill of Pains and Penalties, which have prohibited the federal and state governments from imposing since it was designed to stop tyranny like that of King George. The provisions outlawing bills of attainder were adopted by the Constitutional Convention unanimously, and without debate:
“No Bill of Attainder or ex post facto Law shall be passed [by the Congress].” Art. I, § 9, cl. 3.
“No State shall . . . pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts . . .” Art. I, § 10.
“A bill of attainder is a legislative act which inflicts punishment without a judicial trial.” Cummings v. Missouri, 4 Wall. 277, 323. When an enactment is challenged as an attainder, the central inquiry must be whether the disability imposed by the act is “punishment” (i. e., is directed at an individual or a group of individuals) or is “regulation” (i. e., is directed at controlling future conduct). Flemming v. Nestor, 363 U. S. 603, at 613-614; accord, Trop v. Dulles, 356 U. S. 86, 95-96 (WARREN, C. J., announcing judgment). Whether a punitive purpose would be inferred has depended in past cases on a number of circumstances, including the nature of the disability, whether it was traditionally regarded as punishment, whether it is rationally connected to a permissible legislative objective, as well as the specificity of the legislature’s 463*463 designation of the persons to be affected. See generally Kennedy v. Mendoza-Martinez, 372 U. S. 144, 168-169.
A logical starting place for an inquiry into the meaning of the prohibition is its historical background.
The bill of attainder, a parliamentary act sentencing to death one or more specific persons, was a device often resorted to in sixteenth, seventeenth and eighteenth century England for dealing with persons who had attempted, or threatened to attempt, to overthrow the government. In addition to the death sentence, attainder generally carried with it a “corruption of blood,” which meant that the attainted party’s heirs could not inherit his property. The “bill of pains and penalties” was identical to the bill of attainder, except that it prescribed a penalty short of death, e. g., banishment, deprivation of the right to vote, or exclusion of the designated party’s sons from Parliament. Most bills of attainder and bills of pains and penalties named the parties to whom they were to apply; a few, however, simply described them. While some left the designated parties a way of escaping the penalty, others did not. The use of bills of attainder and bills of pains and penalties was not limited to England. During the American Revolution, the legislatures of all thirteen States passed statutes directed against the Tories; among these statutes were a large number of bills of attainder and bills of pains and penalties.
While history thus provides some guidelines, the wide variation in form, purpose and effect of ante-Constitution bills of attainder indicates that the proper scope of the Bill of Attainder Clause, and its relevance to contemporary problems, must ultimately be sought by attempting to discern the reasons for its inclusion in the Constitution, and the evils it was designed to eliminate. The best available evidence, the writings of the architects of our constitutional system, indicates that the Bill of Attainder Clause was intended not as a narrow, technical (and therefore soon to be outmoded) prohibition, but rather as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function, or more simply—trial by legislature.
The Constitution divides the National Government into three branches—Legislative, Executive and Judicial. This “separation of powers” was obviously not instituted with the idea that it would promote governmental efficiency. It was, on the contrary, looked to as a bulwark against tyranny. For if governmental power is fractionalized, if a given policy can be implemented only by a combination of legislative enactment, judicial application, and executive implementation, no man or group of men will be able to impose its unchecked will. James Madison wrote:
“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”
The doctrine of separated powers is implemented by a number of constitutional provisions, some of which entrust certain jobs exclusively to certain branches, while others say that a given task is not to be performed by a given branch. For example, Article III’s grant of “the judicial Power of the United States” to federal courts has been interpreted both as a grant of exclusive authority over certain areas, Marbury v. Madison, 1 Cranch 137, and as a limitation upon the judiciary, a declaration that certain tasks are not to be performed by courts, e. g., Muskrat v. United States, 219 U. S. 346. Compare Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579.
The authors of the Federalist Papers took the position that although under some systems of government (most notably the one from which the United States had just broken), the Executive Department is the branch most likely to forget the bounds of its authority, “in a representative republic . . . where the legislative power is exercised by an assembly . . . which is sufficiently numerous to feel all the passions which actuate a multitude; yet not so numerous as to be incapable of pursuing the objects of its passions . . . ,” barriers had to be erected to ensure that the legislature would not overstep the bounds of its authority and perform the functions of the other departments.
The Bill of Attainder Clause was regarded as such a barrier. A most important comment written by Alexander Hamilton that is prescient to today’s “heat of the moment”, knee-jerk reaction to implement more draconian gun control laws against law-abiding registered gun owners is as follows. Alexander Hamilton wrote:
“Nothing is more common than for a free people, in times of heat and violence, to gratify momentary passions, by letting into the government principles and precedents which afterwards prove fatal to themselves. Of this kind is the doctrine of disqualification, disfranchisement, and banishment by acts of the legislature. The dangerous consequences of this power are manifest. If the legislature can disfranchise any number of citizens at pleasure by general descriptions, it may soon confine all the votes to a small number of partisans, and establish an aristocracy or an oligarchy; if it may banish at discretion all those whom particular circumstances render obnoxious, without hearing or trial, no man can be safe, nor know when he may be the innocent victim of a prevailing faction. The name of liberty applied to such a government, would be a mockery of common sense.”
Thus the Bill of Attainder Clause not only was intended as one implementation of the general principle of fractionalized power, but also reflected the Framers’ belief that the Legislative Branch is not so well suited as politically independent judges and juries to the task of ruling upon the blameworthiness of, and levying appropriate punishment upon, specific persons.
“Every one must concede that a legislative body, from its numbers and organization, and from the very intimate dependence of its members upon the people, which renders them liable to be peculiarly susceptible to popular clamor, is not properly constituted to try with coolness, caution, and impartiality a criminal charge, especially in those cases in which the popular feeling is strongly excited,—the very class of cases most likely to be prosecuted by this mode.”
By banning bills of attainder, the Framers of the Constitution sought to guard against such dangers by limiting legislatures to the task of rule-making. “It is the peculiar province of the legislature to prescribe general rules for the government of society; the application of those rules to individuals in society would seem to be the duty of other departments.” Fletcher v. Peck, 6 Cranch 87, 136.
It is in this spirit that the Bill of Attainder Clause was consistently interpreted by this Court—until the decision in American Communications Assn. v. Douds, 339 U. S. 382, which we shall consider hereafter. In 1810, Chief Justice Marshall, speaking for the Court in Fletcher v. Peck, 6 Cranch 87, 138, stated that “[a] bill of attainder may affect the life of an individual, or may confiscate his property, or may do both.” This means, of course, that what were known at common law as bills of pains and penalties are outlawed by the Bill of Attainder Clause. The Court’s pronouncement therefore served notice that the Bill of Attainder Clause was not to be given a narrow historical reading (which would exclude bills of pains and penalties), but was instead to be read in light of the evil the Framers had sought to bar: legislative punishment, of any form or severity, of specifically designated persons or groups. See also Ogden v. Saunders, 12 Wheat. 213, 286.
The approach which Chief Justice Marshall had suggested was followed in the twin post-Civil War cases of Cummings v. Missouri, 4 Wall. 277, and Ex parte Garland, 4 Wall. 333. Cummings involved the constitutionality of amendments to the Missouri Constitution of 1865 which provided that no one could engage in a number of specified professions (Cummings was a priest) unless he first swore that he had taken no part in the rebellion against the Union. At issue in Garland was a federal statute which required attorneys to take a similar oath before they could practice in federal courts. This Court struck down both provisions as bills of attainder on the ground that they were legislative acts inflicting punishment on a specific group: clergymen and lawyers who had taken part in the rebellion and therefore could not truthfully take the oath. In reaching its result, the Court emphatically rejected the argument that the constitutional prohibition outlawed only a certain class of legislatively imposed penalties:
“The deprivation of any rights, civil or political, previously enjoyed, may be punishment, the circumstances attending and the causes of the deprivation determining this fact. Disqualification from office may be punishment, as in cases of conviction upon impeachment. Disqualification from the pursuits of a lawful avocation, or from positions of trust, or from the privilege of appearing in the courts, or acting as an executor, administrator, or guardian, may also, and often has been, imposed as punishment.” 4 Wall., at 320.
“[L]egislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial are bills of attainder prohibited by the Constitution.. . . This permanent proscription from any opportunity to serve the Government is punishment, and of a most severe type. . . . No one would think that Congress could have passed a valid law, stating that after investigation it had found Lovett, Dodd, and Watson `guilty’ of the crime of engaging in `subversive activities,’ defined that term for the first time, and sentenced them to perpetual exclusion from any government employment.
In a number of decisions, this Court has pointed out the fallacy of the suggestion that membership in the Communist Party, or any other political organization, can be regarded as an alternative, but equivalent, expression for a list of undesirable characteristics. For, as the Court noted in Schneiderman v. United States, 320 U. S. 118, 136, “under our traditions beliefs are personal and not a matter of mere association, and . . . men in adhering to a political party or other organization notoriously do not subscribe unqualifiedly to all of its platforms or asserted principles.” In utilizing the term “members of the Communist Party” to designate those persons who are likely to incite political strikes, it plainly is not the case that Congress has merely substituted a convenient shorthand term for a list of the characteristics it was trying to reach.
Historical considerations by no means compel restriction of the bill of attainder ban to instances of retribution. A number of English bills of attainder were enacted for preventive purposes—that is, the legislature made a judgment, undoubtedly based largely on past acts and associations that a given person or group was likely to cause trouble (usually, overthrow the government) and therefore inflicted deprivations upon that person or group in order to keep it from bringing about the feared event. It is also clear that many of the early American bills attainting the Tories were passed in order to impede their effectively resisting the Revolution.
“In the progress of the conflict, and particularly in its earliest periods, attainder and confiscation had been resorted to generally, throughout the continent, as a means of war. But it is a fact important to the history of the revolting colonies, that the acts prescribing penalties, usually offered to the persons against whom they were directed the option of avoiding them, by acknowledging their allegiance to the existing governments.
“It was a preventive, not a vindictive policy. In the same humane spirit, as the contest approached its close, and the necessity of these severities diminished, many of the states passed laws offering pardons to those who had been disfranchised, and restoring them to the enjoyment of their property . . . .”
Thus Justice Iredell was on solid historical ground when he observed, in Calder v. Bull, 3 Dall. 386, 399-400, that “attainders, on the principle of retaliation and proscription, have marked all the vicissitudes of party triumph.” (Emphasis supplied.)
The same thought is reflected in the writings of Thomas Jefferson:
“173 despots would surely be as oppressive as one. . . . [L]ittle will it avail us that they are chosen by ourselves. . . . [T]he government we fought for [is] one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others. For this reason that convention, which passed the ordinance of government, laid its foundation on this basis, that the legislative, executive and judiciary departments should be separate and distinct, so that no person should exercise the powers of more than one of them at the same time. . . . If . . . the legislature assumes executive and judiciary powers, no opposition is likely to be made; nor, if made, can it be effectual; because in that case they may put their proceedings into the form of an act of assembly, which will render them obligatory on the other branches. They have accordingly in many instances, decided rights which should have been left to judiciary controversy . . . .” Jefferson, Notes on the State of Virginia, pp. 157-158 (Ford ed. 1894). (Emphasis supplied.)
Now we have 535 despots in Congress, one (1) in the White House, and the multitude in the courts.
by Bruce Eden,
Charter Member, Jews for the Preservation of Firearms Ownership (jfpo.org)