Constitutional Law 101 - for Beginners

Where do the rights of Americans come from? From Congress? From the Constitution?

Thomas Jefferson believed they were God-given. He said so in the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

If Jefferson was correct—and the framers of the Constitution proceeded on the belief that he was—then our federal Constitution is not the source of our rights.


For those who have forgotten, our Constitution was not the first American Constitution. First came the Articles of Confederation. It was a treaty—a confederation of the states—under which “each state retained its sovereignty, freedom, and independence, and every Power, Jurisdiction, and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.”

Our present Constitution was ratified (1788) “in order to form a more perfect Union.”. That is, to remedy defects and omissions of the Articles of Confederation. But like the first Constitution, the present Constitution specifically enumerates the powers delegated to the federal government.

By implication, powers not specifically delegated to the federal government were reserved to the states and/or the people. When the time came for the people of the states to ratify the new Constitution, opponents argued that there was no Bill of Rights attached.

They feared the new government would encroach on the rights and liberties that Americans had enjoyed during the colonial period. They feared the new Congress might regulate religious belief, the exercise of religion, speech and the press, etc.

Proponents of the new Constitution argued a Bill of Rights was unnecessary because no where in the enumerated powers was Congress given any power to regulate religious belief, the exercise of religion, speech and the press, etc. Opponents weren’t persuaded.

They distrusted that rights were sufficiently protected by implication. They feared the new federal government would engage in what we now call mission creep, and abrogate the undelegated sovereignty of the states and the pre-existing rights of the American people.


In order to get approval, the proponents had to agree to the immediate addition of a Bill of Rights. But that was not a grant of rights. It was meant to be a second guarantee—a codification that guaranteed the reserved rights of the states and the people would not be abrogated by the new federal government.

The first guarantee was present because Congress had been granted no enumerated power to prohibit or regulate religious belief, the exercise of religion, speech and the press, etc. The same is true of the 2nd Amendment. From earliest colonial times, guns were essential for self-defense and defense of the family on the frontier. There were no police. But there were robbers, murderers and many hostile Indians.

Then, as well as today, that right of self-defense and defense of family is a God-given right to defend one’s own life and family; a right not to be murdered. The right to self-defense is the most basic of all rights.


You can’t practice religion or speak if you’ve been murdered. When you are confronted by someone with a gun, willing to kill you to achieve his goal, your unalienable right to life becomes virtually meaningless unless you have a gun.

The 2nd Amendment doesn’t grant the right to have a gun. Rather, it does two things: It guarantees the preexisting right of the people to “keep and bear arms,” as well as the preexisting rights of the states to keep their militias, as in colonial times. Therefore, the right of the “people to keep and bear arms” also has double protection.

First, Congress was granted no general power of gun control. Second, the 2nd Amendment guarantees and codifies the preexisting right of Americans to “keep and bear arms.”

In D.C. v. Heller, 2008, Heller admittedly conceded that the 2nd Amendment preexisting right, like the First Amendment preexisting right of free speech, was not unlimited.

Machine guns have been prohibited in interstate commerce under the Congress’ power of regulating commerce. Given the holding in Heller, while the court can be expected to sustain some gun control, it is clear that no regulation will be allowed that regulates out of existence the preexisting right of a person and his family to possess a weapon or weapons reasonably suited and necessary to assure defense of home and family.

Posted: QCOline.com April 12, 2018
Copyright 2018, John Donald O'Shea