Hamilton
Warns About Constructive Powers |
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It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was MAGNA CHARTA, obtained by the barons, sword in hand, from King John. Such were the subsequent confirmations of that charter by succeeding princes. Such was the PETITION OF RIGHT assented to by Charles I., in the beginning of his reign. Such, also, was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of parliament called the Bill of Rights. It is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations. "WE, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ORDAIN and ESTABLISH this Constitution for the United States of America.'' Here is a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government. .
. . . I go further, and affirm
that bills of rights, in the sense and to the
extent in which they are contended for, are not only
unnecessary in the proposed Constitution, but would even
be dangerous. They would contain various exceptions
to powers not granted; and, on this very account, would
afford a colorable pretext to claim more than were
granted. For why declare that things shall not
be done which there is no power to do? Why, for
instance, should it be said that the liberty of the press
shall not be restrained, when no power is given by which
restrictions may be imposed? I will not contend
that such a provision would confer a regulating power;
but it is evident that it would furnish, to men disposed
to usurp, a plausible pretense for claiming that
power. They might urge with a semblance of reason,
that the Constitution ought not to be charged with the
absurdity of providing against the abuse of an authority
which was not given, and that the provision against
restraining the liberty of the press afforded a clear
implication, that a power to prescribe proper regulations
concerning it was intended to be vested in the national
government. This may serve as a specimen of the
numerous handles which would be given to the doctrine of constructive
powers, by the indulgence of an injudicious zeal for
bills of rights. Among the constructive powers assumed by Maryland has been: |
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| 1) | Delaying the people from taking possession of arms purchased (prior restraint of a right). |
| 2) | Denying the people permission to purchase within Maryland arms available in other states and establishing an unresponsive bureauracy to control and determine which arms are legally permitted for sale by the state thereby inflating their cost. |
| 3) | Limiting arms purchase quantities by law abiding citizens. |
| 4) | Placing a tax on the continuing ownership of some arms. |
| 5) | Requiring, as a prior restraint, that the people attend a safety class before they are permitted to take possession of arms purchased. |
| 6) | Creating an unresponsive bureauracy to delay and deny the right to carry concealed firearms even though such may be of immediate necessity to defend life. |
| 7) | Combining Maryland laws with Federal laws to create and extraterritorial limitation on legal commerce in other states by banning the purchase by Maryland residents of firearms in other states that are lawful for sale in those states. |
The effect of these actions is to create a licensure on law abiding Maryland residents as to their lawful actions and a denial of their rights of self-defense through that licensure.
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