By Karen MacNutt,
Contributing Editor

A man walks up to another man in a bar [you can tell this is a "guy" story].
The bartender says, "Hey, buddy, why are you carrying that elephant gun?"
Second man says, "It keeps the elephants away."
The bartender says, laughing, "Ain't no elephants around here, friend."
Second guy says, "Yeah, I know. It works well, don't it?"

The Constitution is a little like that elephant gun. It is so good at keeping the beasts away that after a while people stop believing that beasts exist or could make a home in our country. There was a time when the wooly mammoth, a grandfather of the elephant, roamed North America. Although the wooly mammoth might be extinct, human nature has not changed. The evil, corrupt, oppressive and nasty things people did to each other three hundred, or even three thousand, years ago continue to be done today.

The authors of the Constitution were practical men. They had been victims of evil practices. They studied the evil practices of recorded history. Some had engaged in evil practices themselves. Although they might seem strange today, there are good reasons the Constitution prohibits practices some people think should be allowed in the name of public safety. Some of the things prohibited have been so long removed from our daily lives that most Americans do not have the faintest idea of why they were prohibited. For example, the Third Amendment in the bill of rights says that no soldier shall be quartered in any house without the consent of the owner. Why was that so important?

Before our independence we were governed by the laws of England. One of the nasty habits the English had when occupying an area was to quarter (house) its troops in private homes. Usually they picked the homes of people whose loyalty was in question. This is how the system worked. There would be a knock on your door and in would come a group of soldiers for you to take care of. Of course all loyal citizens would be happy to care for the king's troops. The troops expected the best beds and rooms in the house. They were not very good at respecting property rights or privacy rights. They took what they wanted. The homeowner was expected not only to house the troops but to feed them. All this for no compensation. It is easy to see how quartering was disastrous for the homeowner. Because of the Constitution, modern Americans have no experience with, or fear of, the quartering "elephant."

Another section of the Constitution which seems strange to us today is Article I, Section 9, paragraph three. It states, "No Bill of Attainder or ex post facto Law shall be passed."

An ex post facto law was a cute trick the English Parliament used to get rid of people they did not like. Ex post facto is Latin for "After the fact." It worked this way: A law would be passed making something that you did yesterday (when it was perfectly legal) illegal today. The effect of the law was retroactive. For example, on June First a person would go to church X. On June Second, it would become illegal to have ever attended church X and you could be punished for having gone on June first. Such laws were always intended to entrap politically disfavored people.

The authors of the Constitution wanted a system of law in which people were given fair notice of what was illegal. It wanted people to have a fair chance to conform their actions to the law. Today, courts occasionally strike down laws for being vague. That is part of the same concept of fair notice. The ex post facto prohibition also means that if you commit a crime in 2004 and the law governing the punishment for the crime was altered in 2005, you are only subject to the punishment available in 2004, the date the crime was committed.

How then can an offense that did not disqualify you from owing a gun when you committed it suddenly become a disqualifying offense upon the passage of a new gun control law? The Lautenburg Act, which prohibits people with minor domestic abuse convictions from having guns, did just that. One would think that the Constitution's ex post facto prohibitions would require such laws to apply only to new convictions, not old convictions. The proponents of the law argued that Lautenburg did not enhance the penalty of the old conviction but simply set out a class of people who cannot be trusted with guns because of their past conduct. The argument was purely semantical. Clearly the law took from many citizens a valued civil right. Those who were affected considered it a punishment. Some who had admitted to crimes as part of a plea bargain would not have done so had they known the admission would lead to a lifetime forfeiture of a civil right. The rules had been changed after the game was played. That is not fair and violates the concept of no ex post facto law. Law, however, is only as fair as those people who enforce it. In this instance the "elephants" got the upper hand. The Supreme Court accepted the rationale that the law was intended to take guns from a class of people that were currently unsuitable by virtue of their past acts and therefore not against the ex post facto provisions of the Constitution.

The same section of the Constitution that prohibits ex post facto laws prohibits bills of attainder. Most people would be hard put to define a "bill of attainder." The concept of attainder is still around although it is almost never called that. The full force of attainder is not used in the United States because it is prohibited even as a judicial sanction. In its most expansive use, attainder punishes people who have done no wrong. "Attainder" is the legal forfeiture of civil rights. This included the right to own property, to sell property, to inherit property or to pass property by inheritance. It also included a forfeiture of life. Attainder usually attached to serious felonies such as treason where the death penalty was imposed. Not only was the culprit hung, but all his lands and possessions were forfeited to the Crown. If the culprit had family, that family could inherit nothing from other family members. It was as if the culprit never existed. Because he never existed, his family had no legal standing or rights. In old accounts of "legal" proceedings that took place three hundred years ago or more there are stories of people who chose to be tortured to death rather than confess. One reason not to confess was attainder. If you confessed, the government took all your property and all that of your family.

Attainder could be based on a confession. It could occur after a finding of guilt by a court. It could occur if a person were accused and fled the jurisdiction. Such people were said to be outside the protection of the laws. All their property was seized and they could be killed by anyone on sight. This is where the term "outlaws" came from. In early English law, all felonies-the more serious crimes-carried the death sentence. Today, many jurisdictions in the United States extinguish some civil rights upon the conviction of serious crimes. Some of the more common civil rights extinguished are the right to vote, to sit on a jury, to run for public office, to hold certain jobs, and to own a gun. Attainder, in this form, was not prohibited by the Constitution. Today, drug laws that allow punitive property forfeitures approach the attainder prohibition when the property to be forfeited was not the instrument of the crime, was not purchased with the profit of the crime, and was not owned by the criminal.

The last way attainder was achieved was by legislative (or executive) enactment where a single person or class of people were stripped of their rights. This occurred in many states during and after the American Revolution when laws were passed confiscating the property of people who had remained loyal to the King of England. In some states the laws were stated as acts of confiscation while in others they were called special tax assessments. Such acts were prohibited by the Constitution.

The intent to prevent the stripping of rights based on political reasons is prevalent throughout the Constitution. For example, in Article I, Section 9, direct taxes were prohibited unless they were in proportion to the census. This was to prevent one person or class of persons being stripped of their property under the guise of a "tax" which was really a legislative confiscation. Article III, Section 3, limited punishments courts could impose. "...No Attainder of Treason shall work Corruption of Blood [passed to the next generation], or Forfeiture except during the Life of the Person attained." Amendment V said that no person shall be held to answer for a ...crime...unless indicted by a grand jury...nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for a public use without just compensation. In Amendment VI the right to trial by jury in criminal matters was stated as was the right to be informed of the nature and cause of the accusation. Amendment VII preserved the right to a jury in civil matters.

When slavery was abolished, it was by amendment to the Constitution that specifically stated that there would be no compensation to the slave owners. (Amendment XIV, Section 4.) When Congress tried to make alcohol illegal: it did so by amendment. Congress could not, without Constitutional amendment, take people's property without compensation.

One of the strongest concepts in our Constitution is that the government may not take your property without compensation or, in the alternative, proof of wrongdoing. Proof of wrongdoing requires that you be told what you are accused of and have the opportunity to refute the accusation. Guilt is not assumed by political affiliation nor can it be legislatively imposed on a class of people. Each person is responsible for his or her own acts.

Within the common civil (as opposed to criminal) law, you are not responsible in damages to someone unless you have done something wrongful and that wrongful conduct was the direct cause of the injury. You are not responsible for injuries caused by other people.

One reason most of the suits against gun manufactures failed was because the gun manufacturers had done nothing wrong. The injury was caused by criminal activity, not the gun manufacturers. The products they manufactured were lawful. It was mechanically sound. The manufacturers sold their products through lawful channels. They are not responsible for persons who misuse their product for unlawful purposes. In spite of some imaginative propaganda by anti-gun fanatics, gun dealers and manufacturers do not merchandise their product to the criminal market. The attempt to hold manufacturers liable for the misuse of their products is extremely chilling for all manufacturers in the United States. If gun manufacturers can be held liable for gun injuries that were caused by the intentional misuse of their products, then why not hold the auto manufacturers responsible for all automobile accidents? Under such circumstances, why should a manufacturer build a plant in the United States and be subject to huge lawsuits when it could build in Mexico?

The moment we back away from individual responsibility and apply some kind of collective guilt, we have problems with the Constitution and with any concept of fairness. Some states or local governments have protected industry from lawsuits, not because industry has done anything wrong, but because the cost of defending such suits is exorbitant. Legal fees can easily drive a business out of business even though it has done nothing wrong. The loss of jobs and the discouragement of industry works a hardship on the entire community. Lack of good paying jobs creates an environment in which crime flourishes.

The anti-gun movement has tunnel vision. The fact that it is assaulting other people's rights or doing violence to the Constitution does not deter it. The fact that it conceals the truth from the public, twists facts to prove its own reality, or that it will hurt individuals does not discourage it. It is willing to forego or corrupt the normal political channels to get its own way. Being unable to get direct legislation to ban guns, it tries to force its agenda on America by indirect means that can be executed by officials who are not elected representatives. This was the plan behind the lawsuits. They wanted courts to order what the legislature refused to do.

Now that the suits have, for the most part, failed, they will try something else. In New Jersey there is a proposal to allow the police to seize any property in which an illegal gun is found. The law would allow this even if the owner did not know the gun was there or that the gun was illegal. Such a law is against every principal of the Constitution. It violates concepts of fairness, predictability, and responsibility. The only way a property owner could even begin to protect himself is to ban all guns. Of course only those licensed would be impacted as those with the illegal guns would continue to do illegal things. Let me put this in perspective. If a man from Virginia walked into terminal A at the Newark airport with a Virginia license for his gun, even though his gun was unloaded and in a case, he would have an illegal gun under New Jersey law if he did not also have a New Jersey license. The police, under the proposed law, could seize the airport terminal and sell it to whomever would bid on it. If the gun seizure bill is like other forfeiture laws, the police would get to keep the profit! What a racket! It would undoubtedly lead to a legal equivalent of extortion for business and tend to ostracize legal gunowners.

Another proposal is to pass laws to do what the courts refused to do. That is to pass laws to make gun manufacturers liable for damage resulting from the unlawful use of guns by people the manufacturers have no control over. This would quickly put most manufacturers out of business. That is, of course, the intent. The fact police would have a difficult time getting guns, or the cost to law enforcement would be driven up, is lost on those who hate all guns. Manufacturers would require indemnification agreements and in the end, the cities and towns would become liable for the misuse of any gun by a police officer or stolen from the police. Such proposals are an attempt to legislatively extinguish the civil rights of manufacturers to be in a lawful business. Such laws are, in fact, a form of bill of attainder. They attempt to take property from the manufacturer because government has failed to protect its citizenry and because of wrongful acts committed by others.

Twisting the legal system to create an oppressive climate is not new. Oppressive laws always masquerade as reasonable measures needed to meet some emergency. Such laws are our "elephants." People who are willing to mislead the public and ignore legal process to impose their own agenda on the rest of us without regard to the loss of government integrity are the beasts in our modern jungle. Sitting in a bar with an elephant gun, however, is not the answer. Americans can never sit back and assume freedom will be protected. Electing good people to government and holding them accountable is the answer.

Stay involved in the political process at all levels of government. Do not let anyone convince you to give up any of your civil rights in the name of some higher cause. There is no higher cause than defending human rights and dignity.