Wednesday morning I presented SB 129, An Act to prohibit infringement upon the constitutional right to keep and bear arms which was deferred to the 41st day (effectively killed).
There may still be hope to resurrect this sentiment in a Resolution, but that may be bleak considering the Constitutional tug of war that has been taking place in our country for so long.
There will always be efforts to discredit and undermine efforts like this. Legislators have long been swayed and influenced by other people and opinions on the Constitution and not the Constitution itself.
The main argument against SB129 during committee was that standing up for our Constitutional rights will put us at risk to lose federal funds, essentially making us a hostage to the will of the federal government.
I don’t claim to be a Constitutional scholar, or a lawyer or a judge or a historian, but the premise of the Constitution is that it is for the people, by the people. You shouldn’t have to be any of the learn-ed men described above to understand the scope of the laws of our nation and to protect them.
You can listen to the committee hearing here
Or read my comments (as prepared) below:
Mr. Chair and members of the Senate State Affairs Committee. I’m Senator Jessica Castleberry, representing District 35. Today I bring you SB 129, An Act to Prohibit infringement upon the constitutional right to keep and bear arms.
There is a friendly amendment and I would like to present the bill in it’s amended form SB 129A.
In the early 1900s, my family fled Russia, hidden under layers of straw, terrified, afraid to breathe, concealed at the bottom of a hay wagon.
Russian Jews- identified by their government to be a threat to the country only for their heritage... Countless unarmed family and friends of his village beheaded by the Cossacks. The Cossacks, so as not to waste ammunition on people who were unarmed and completely defenseless, beheaded men, women, and children- or stabbed them, leaving them to a slow, horrible, bloody death. If not for my family’s escape, this would have been the end of our family line and I would not be standing here today. The perfect example of a people not equally armed to their government and their governments representatives and entirely unable to defend themselves.
My family fled to America. Just a little over 100 years ago, To be safe, to be free.
At the Massachusetts Ratifying Convention in 1788 - Samuel Adams said
"The Constitution shall never be construed to prevent the people of the United States who are peaceable citizens from keeping their own arms."
I bring you today SB 129
The United States of America was a country founded by men and women who understood tyranny. Who understood fear. Who understood what would happen when an absolute government power corrupts absolutely. Founded by men who crafted so carefully a new democratic republic that was for the people by the people. The Constitution begins, We the people of the United States. Not we the government officials, or we the aristocracy, or we the military, or we the constitutional scholars, or we the judges and lawyers.. We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
Regardless of the time, care, and wordsmith that went into every word of the Constitution- I have no doubt that the day after the Constitution was ratified, it was immediately mis-interpreted and misconstrued because of human nature. The Constitution was not laid out as a fluid document open for interpretation. Every attempt was made so that anyone who read it or heard the words could understand.
King George and President Joe
In 1768, King George declared regarding the colonists in America, “The arms of all the people should be taken away.” This was originally to suppress riots and to help in the collection of taxes. The British resorted to every possible tactic to disarm the Americans, entrapment, false promises of safekeeping of their weapons, banning imports, direct firearms seizure, and finally shooting persons bearing arms. These actions by a tyrannical ruler are the reason the Second Amendment was drafted.
The Second Amendment of the United States Constitution affirms: A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.
The South Dakota Constitution states in the right to bear arms: The right of the citizens to bear arms in defense of themselves and the state shall not be infringed.
Our president has a similar plan to control Americans. He plans to hold gun manufacturers civilly liable for crimes committed, to ban the manufacture and sale of assault weapons and high-capacity magazines, to regulate possession of existing assault weapons under the National Firearms Act, to force the sale or annual registration of assault weapons and high-capacity magazines already in our communities, to reduce stockpiling of weapons by restricting the number of firearms an individual may purchase per month to one, to enact legislation to prohibit all online sales of firearms, ammunition, kits, and gun parts, to incentivize state “red flag” laws, to give states and local governments grants to require individuals to obtain a license prior to purchasing a gun, to put America on the path to ensuring that 100% of firearms sold in America are smart guns- smart gun technology requires a fingerprint match before use, to promote legislation holding adults criminally and civilly liable for directly or negligently giving a minor access to a firearm- regardless of whether the minor actually gains possession of the firearm, legislation requiring firearm owners to store weapons safely in their homes, prohibit the use of federal funds to arm or train educators to discharge firearms, and address the epidemic of suicides by firearms.
While there are several concerns within this gun plan, the plan in it’s entirety is several pages long.
Proper storage of firearms: Who determines what is proper storage and how is it regulated? Will my home be subject to inspection? Will I be stopped by law enforcement on the street to make sure my gun is in my purse but unloaded or locked in a gun safe in my car?
Smart guns: Guns that can only be fired with a fingerprint match. Look at the inadequacies of your smart phone, first introduced decades ago and still largely defective. Can you imagine if your phone could fire ammunition? Implications of only one person in your home able to shoot it no matter the emergency, or the necessity to purchase separate guns for each household member, smart technology malfunctioning and being unable to use it if you needed to...
Suicide: The number one method of suicide for men statistically is gun use. The number one method for women is poisoning. Claims that restrictions on guns will end suicide is not only incorrect it’s negligent. Suicide is not a gun problem, it is a people problem. Increasing access to mental health resources and focusing on care and prevention is where this argument should be placed. This type of lazer focus on guns equaling suicide completely ignores the causation of suicide and the majority of female suicides which are due to poisoning.
Registration: Given how costly some firearms can be, a $200 annual registration fee may not sound like too much of an added burden, but for a person who has already bought and paid for multiple qualifying firearms and magazines (or inherited them), that amount will add up quickly. Those who violate the National Firearms Act will also face up to 10 years in federal prison, and a potential $10,000 fine. Also mentioned above are the online sale of firearms and ammunition, including gun parts and parts kits that some people use to manufacture their own low-cost DIY firearms further limiting accessibility.
Regardless of one’s opinion on guns and gun control, it is obvious that this proposal will disproportionately impact poor and working-class communities, for whom a $200 registration fee per firearm per year could be a dealbreaker for them to be able to afford to protect themselves. Low income and working class people who already own firearms could be robbed of their ability to protect themselves and their loved ones. The wealthy will be able to afford to protect their families, and the poor will not.
According to the United States Constitution does any of this sound like the right of the people to keep and bear Arms is being infringed? According to the South Dakota Constitution does any of this sound like the right of the citizens to bear arms in defense of themselves and the state is being violated, hindered, or intercepted?
In the Second Amendment, the People of the United States did not delegate the power to regulate or control the ownership of firearms to the federal government. And, as the 10th Amendment makes clear, all powers not delegated to the federal government are reserved to the States or to the People themselves. State legislation to nullify federal gun laws or regulations focus on this basic and essential principle, and propose to make state law that the federal government is effectively banned from such regulations and laws within the state.
For those that will argue that South Dakota legally cannot create any laws to safeguard against any newly created federal firearms law, then why are California, and Chicago, and New York allowed to create laws that supersede existing federal law as defined in the Constitution? When state laws bring more firearms restriction, the laws are passed and receive little questioning, but when state laws like SB 129 are brought to protect original federal laws like the Constitution, we’re told we don’t have the authority or ability to enforce them.
The United States and South Dakota Constitutions are very clear on the right of the people to bear arms. It is further supported over and over again in the Articles of Confederation and the Federalist Papers.
Article 6 of the Articles of Confederation maintains every state shall always keep up a well regulated and disciplined militia, sufficiently armed and accoutred, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and camp equipage. Cannons, tents, arms, ammunition shall always be provided and constantly have ready these items in public stores.
For arguments on what is meant by militia, that can be found in Federalist Paper 29 Concerning the Militia by Alexander Hamilton in 1788. Twenty two years earlier, in 1766, Justice William Blackstone set forth the common law definition of the term “militia,” which he stated was an “auxiliary right of the individual, supporting the natural rights of self-defense, resistance to oppression, and the civic duty, to act in concert with his neighbors in defense of the state.” This is why the term militia cannot be defined as any branch of the military or National Guard, it is the individual.
When we take the oath of office, we recite the following: I do solemnly swear that I will support the Constitution of the United States and the Constitution of the State of South Dakota… The right of the people to protect themselves is indisputable, and every elected legislator who recites that oath swears to uphold these documents. SB 129 is not about my opinion. It is about fulfilling the oath that each legislator has taken.
For those who contemplate the good of an unarmed society, I’ll remind them of a South Dakota story from WWII, when our law abiding, gun owning citizens donated guns to the British to enable them to protect themselves against the Nazis. It seems prudent that we didn’t allow the British government to disarm us in the 1700s.
There are some that have concerns SB 129 could lead South Dakotans to believe they can ignore federal law, and if they do the feds could arrest them and ultimately South Dakotans would face very steep prison penalties. The intention of SB 129 is not to empower people to ignore federal law and risk imprisonment. It is a clear outline of the types of federal statutes that the citizens of SD ask the attorney general, shall review and may thereafter object to and litigate against any action that violates this bill. It is meant to communicate unmistakably the will of the people to the SD attorney general.
When I sought proponent testimony from some of those who would be most affected by new taxes, levies, fees, stamps, registrations, forbidding or restricting law-abiding citizens from possession, ownership, use or transfer of firearms, I reached out to gun owners, gun store owners, and firearms manufacturers across SD. While they were all supportive of SB 129, I received responses like, “I’m up for federal inspection soon, I don’t want to draw any attention to myself.” “I’m afraid I’ll be targeted by the media and I’ll lose my business.” “Thank you for doing this, I’m sorry, I’m too afraid of the federal government to speak.”
In the United States, we are told from the time we enter elementary school that we live in the land of the free and the home of the brave. We are taught to never question that. Citizens of the United States are promised in law freedom of speech, the right to petition the government for a redress of grievances, and the right of the people to keep and bear arms without infringement.
In the words of - St. George Tucker, from Blackstone's Commentaries on the Laws of England, 1803
"This may be considered as the true pallaydium of liberty.... The right of self-defense is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction."
SB 129, An Act to prohibit the infringement upon the constitutional right to keep and bear arms is clear. South Dakotans do not have a king, and South Dakotans are no one’s subjects. I respectfully request your favorable consideration and will standby for questions.