Congress should crack down on guns "found," stolen or acquired on the "street" or from the "black market"

If you are serious about reducing gun deaths …


In the wake of the recent mass murders in Texas, Congress has again passed legislation intended to stop “dangerous” people from getting guns.

The legislation will enhance background checks for would-be gun buyers under the age of 21, and provides for the examination of juvenile court records, and mental health records from the age of 16.

It provides funding for states to better implement “red flag laws.” These permit officials to “temporarily” confiscate guns from people adjudged to be a threat to criminally use them.

And it strengthens laws against a person who purchases a gun for someone who is prohibited by law from possessing a gun, or who does not want their name associated with the transaction.

So, will this legislation prevent the next episode of mass murder? Only if the would-be shooter is one of the less than of 2% criminals who purchase their guns from licensed gun dealers.

Unfortunately, the vast majority of criminals who use guns don’t get their guns from licensed gun dealers. Indeed, 56% appear to get their guns by stealing them, “finding them” at the crime scene, or getting them “off the street or from the underground market.”

In January 2019, the US Department of Justice, Office of Justice Programs, Bureau of Justice Statistics published a report, captioned, Source and Use of Firearms Involved in Crimes:[2016] Survey of Prison Inmates. It stated that

1. 21% or 287,400 of all state and federal prisoners reported that they had possessed or carried a   firearm when they committed the offense for which they were serving time. 

2. 6% claimed they had stolen the gun.
3. 7% claimed they “found it” at the scene of the crime.
4. 43% stated that they obtained the gun “off the street or from the underground market.”
5. 25% claimed to have obtained the weapon from a family member or friend, or as a gift.

6. Less than 2% of prisoners say that they obtained the gun from a retail store.

7. 0.8% admitted obtaining the gun at a gun show.

The primary goal of the criminal law is to protect those who abide by the laws from those who don’t.

To that end, the criminal law seeks to (a) protect the law-abiding public, (b) punish the offender, (c) provide for his rehabilitation, and (d) deter him and others from committing future crimes.

Congress’ new legislation may help slightly, but it will not stop people from using guns obtained by stealing, “finding” or getting them “off the street or from the underground market.”


If you really intend to do that, you need to pass legislation that scares the hell out of any rational person who would possess a stolen or “found” gun, or one bought “off the street or from the underground market.”

Pass a law that says, possession of a gun bought other than from a licensed firearm dealer carries a mandatory 10-year prison term, with parole possible only after 8.5 years. (The 1.5 year reduction would be for “good conduct” clearly indicative of “rehabilitation.”)

Let that law contain a second section that states that if such a gun is used in the commission of any crime, the mandatory prison term will be 20 years, with parole possible only after 17 years.

Let the third section provide that if bodily harm is done to any individual by gun shot from said gun that the mandatory prison term will be 40 years, with parole possible only after 34 years.

Let the fourth section provide that if death or great bodily harm is done to any individual by gun shot from said gun, that the mandatory prison term will be 60 years or life, without parole, in the discretion of the court taking account of all relevant factors.

Provide an exception where the gun was lawfully purchased after a required background check by a person lawfully entitled to buy it, who subsequently gifts it to an immediate family member after that donee passes a required background check.

Then, if such a gun is used in violation of the five provisions above, provide that the defenses of self-defense and defense of other shall not be available to said gun user.

Finally, provide that where death or great bodily harm has been done with such a gun, and where the defendant is adjudged to be insane, that the prosecutor shall proceed with a “not guilty only” trial, and that upon conviction the defendant shall be placed for the mandatory term in a mental health prison wing for a like term.

You won’t stop all shooting by such a law. But 56% of prison inmates obtained their guns by stealing them, “finding them,” or getting them “off the street or from the underground market.” How many of them could have obtained a gun from a licensed gun dealer after a background check?

The goal of my proposed law is to scare the hell out of anybody inclined to steal, find, or acquire a gun “off the street or from the underground market.” Once “Harry Street-Gang” sees his best buddy, “Charlie Gang-Bang,” get 10 or 20 years, for possessing or using such a gun, obtaining a gun off the street will no longer be worth the risk.

Wikipedia states that in 2020 there were 615 “mass shootings” in the USA that resulted in 521 deaths. But in 2020, over 19,000 were shot dead (excluding suicides). It is folly to focus on the 521 mass shooting victims, and to ignore the other 18,500. Toddlers are being killed in our great cities as street gangs wantonly shoot up and down our city streets.


Of course, my statute will fail if prosecutors won’t use it, or plead such cases down.

Admittedly, there do not appear to be recent statistics to show exactly how many of the 19,000 deaths were caused with stolen or black-market guns. But when 56% of the prison inmates say the gun they used was such a gun, there is a reasonable inference to be drawn.

Copyright 2022, John Donald O'Shea

First Published in the Moline Dispatch and Rock Island Argus on July 17, 2022 

Before the EPA can destroy a major industry, there must be clear Congressional authorization

Does the EPA — a collection of unelected bureaucrats — have power in America to shut down industries that produce electricity by burning coal or natural gas to prevent climate change, notwithstanding the costs involved to the public, the industry and the workers who will lose their jobs?


In the days when I was in law school, we took a required course known as “Agency.” That course explained the relationship between the “principle” and his “agent.” An agent was a person appointed by the principle to transact certain business on behalf of the principle. The rule was that an agent had only such powers as an agent as were conferred upon him by his principle. The agent was powerless to create his own authority. 

A simple example: If I hire a young man for the purpose of mowing my lawn, I have given him authority to mow my lawn. Unless I have given him authority to paint my house, he has no such authority. The agent can’t create his own authority.

If I authorize the young man to cut my lawn, that is his express authority. I am also implicitly authorizing him to use a lawn mower. That would be reasonably expected. He would not by implication, however, be authorized to buy a $3,000 John Deere Garden tractor at my expense to do the job.

Our American Constitution provides that, “all legislative power resides in Congress.” Among the enumerated powers, Congress is specifically granted “Power To provide for the general Welfare of the United States.” To facilitate that purpose, another clause says that Congress has power “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.”

As such, Congress is the “principle.” As such, Congress can appoint an “agent,” if Congress determines that an agent is “necessary and proper” to implement a law it passes. The IRS, the FAA and the EPA are such “agents.” As in the case of any other agent, Congress’ agents have only those powers conferred upon them by Congress.

A few days ago, the U.S. Supreme Court in West Virginia v. EPA ruled in accordance with those principles.

Congress created the EPA to protect the environment. For many years, the EPA set standards to be met by the states to control pollution. Traditionally, industries, such as industries that burn coal to produce electricity, have been required to install equipment calculated reduce the carbon emissions created by the process. The standards created by the EPA have traditionally balanced, among other factors, the cost of installing the most efficient equipment for obtaining the best result in terms of pollution reduction against the cost to the industry of doing so.


But what happens if employing the best and most modern equipment, produces only minimal results in further reducing pollution? 

Can the EPA make a new rule that say that to further reduce pollution, the plant owner must shut down his coal-fired plant, and replace it with a gas-fired plant? But while gas carbon emissions are only half of the of coal emission, what if to “save the planet,” the EPA determines that even carbon emission produced by burning gas, still pollute too much? Can the EPA order a shut-down of all coal-fired and all gas-fired plants, and order a conversion to “green energies?” What if that change-over will cost billions, or even trillions of dollars? What if the cost to the public is dramatically higher energy prices? Inadequate electricity? What if tens of thousands of people are thrown out of work? Can the EPA do that?

In West Virginia v. EPA, the court held, "No."

“Prior to 2015, EPA had always set emissions limits under Section 111 based on the application of measures that would reduce pollution by causing the regulated source to operate more cleanly.

“Here, rather than focus on improving the performance of individual sources, it would “improve the overall power system by lowering the carbon intensity of power generation.” … It would do that by forcing a shift throughout the power grid from one type of energy source to another.

“Under its newly “discover[ed]” authority, … EPA can demand much greater reductions in emissions based on a very different kind of policy judgment: that it would be “best” if coal made up a much smaller share of national electricity generation. And on this view of EPA’s authority, it could go further, perhaps forcing coal plants to “shift” away virtually all of their generation—i.e., to cease making power altogether.”

In West Virginia v. EPA, the court said that if Congress meant to give the EPA such authority, it had a duty to clearly state that it meant to do so.

“Agencies have only those powers given to them by Congress 'Enabling legislation" is generally not an “open book to which the agency [may] add pages and change the plot line.” …

“We presume that “Congress intends to make major policy decisions itself, not leave those decisions to agencies.”

“To convince us otherwise, something more than a merely plausible textual basis for the agency action is necessary. The agency instead must point to “clear congressional authorization” for the power it claims."

Before the EPA can destroy a major industry, Congress must clearly give it such power.

Copyright 2022, John Donald O'Shea

First Published in the Moline Dispatch and Rock Island Argus on July 10, 2022 

Balance and compromise are the essence of democracy

If you have studied civics or American government in school, you know that our federal government has only those powers expressly delegated to it by the Constitution. All other powers are reserved to the states or to the people. The federal government was created to do only those things that the states found that they couldn’t do for themselves.

As such, the federal government is not “presumed” to have powers. It has only those powers “specifically delegated” to it.

If you scrutinize our U.S. Constitution and its Bill of Rights, you will not find the word “abortion.” The Constitution nowhere says, “Every woman has a right to choose abortion.” So, how did “abortion” come to be a Constitutional Right?

The Constitution itself prescribes the mechanism for its amendment.

“Amendments, … shall be valid … when ratified by the legislatures of three-fourths of the several states, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congress ….”

Twenty-seven amendments have been to our Constitution. Do any of its 27 amendments mention the word “abortion?” The answer is, “No.”

So, how then did “abortion” come to be a “constitutional right?”

Abortion came to be a “constitutional right” in 1973 when seven justices of the U.S. Supreme Court said so.

Mr. Justice Blackman, author of the majority opinion in Roe v. Wade, wrote that a woman’s right to choose to abort her fetus has its basis in the right of “privacy.”

Blackman, however, began by acknowledging that “The Constitution does not explicitly mention any right of privacy.”

“In a line of decisions, however, going back perhaps as … [1891], the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment …; in the Fourth and Fifth Amendments …; in the penumbras of the Bill of Rights …; in the Ninth Amendment …; or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment … . These decisions make it clear that only personal rights that can be deemed 'fundamental' or 'implicit in the concept of ordered liberty… are included in this guarantee of personal privacy.”

The court then concluded

“This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.”

Thus, in the absence of clear language in the Constitution or in its Bill of Rights, the seven-member majority discovered a “constitutional right” to abortion lurking somewhere “in the penumbras of the Bill of Rights” or “'implicit in the concept of ordered liberty.”

Because I believed that our Constitution and Bill of Rights must be construed consistently as they would have been construed by the people who adopted it, from the day Roe was decided, I have
believed that Roe v. Wade was improvidently decided, and was a usurpation by seven judges of the rights of the people to amend our Constitution through their elected legislatures or conventions.

I believe the following questions are dispositive: (1) at the time that our Constitution was written and ratified, did anyone involved in the process believe it was enshrining “abortion as a“constitutional right?” (2) Did anyone believe, at the time our Bill of Rights was adopted, that “abortion” was being protected thereby? (3) Did anyone believe in 1868, when the 14th Amendment was written to prohibit the states from depriving “any person (especially the former slaves) of life, liberty, or property, without due process of law” that it was guaranteeing women the right to abort fetuses?”

Have we a historical record of even one person, at any of those times, arguing that the Constitution, the Bill of Rights or the 14th Amendment “will guarantee women the right to abortion?”

If not, Roe v. Wade was an unconstitutional judicial usurpation.

In 1973, in dissent, Mr. Justice White, wrote 

“I find nothing in the language or history of the Constitution to support the Court’s judgment…

“This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs.”

In 1973, I said the Roe decision was wrong. The Court construed two adjoining words in the 14th Amendment: “life” and “liberty.” 

The mother’s “liberty” was construed “expansively.”

The fetus’ “life” was counted for nothing. Dodds v. Jackson allows the people and their 50 legislatures to act to strike the proper balance the fetus’ “life” and the mother’s “liberty.” Balance and compromise are the essence of democracy.

The purpose of our written Constitution and its written amendments was to clearly state, for the whole world to see, the rights of every American, and the powers specifically granted to the national government. If abortion was such a fundamental right, it is remarkable that it wasn’t guaranteed therein, along with our fundamental rights to speak, worship, print and peacefully assemble.

Copyright 2022, John Donald O'Shea

First Published in the Moline Dispatch and Rock Island Argus on July 3, 2022