Buy Guns, Not Health Insurance

Why Congress May Lawfully Require Citizens to Buy Guns & Ammunition, But Not To Submit To Obamacare

Harvard Law School was embarrassed recently when one of its graduates, the putative President of the United States, demonstrated that he was unaware that the supreme Court has constitutional authority to declare an act of Congress unconstitutional.1

And after reading a recent paper by Harvard law professor Einer Elhauge, one wonders whether the academic standards (or is it the moral standards?) of that once great school have collapsed.

Professor Elhauge says in “If Health Insurance Mandates Are Unconstitutional, Why Did the Founding Fathers Back Them?” (The New Republic, April 13, 2012), that Congress may force us to buy health insurance because in 1792, our Framers required all male citizens to buy guns; and in 1798 required ship owners using U.S. ports (dock-Yards) to pay a fee to the federal government in order to fund hospitals for sick or disabled seamen at the U.S. ports.

Oh! What tangled webs are woven when law professors write about Our Constitution!

I have already proved that Art. I, Sec. 8, next to last clause (which grants to Congress “excusive Legislation in all Cases whatsoever” over dock-Yards and the other federal enclaves) is what authorizes Congress to assess the fee from ship owners who use the federal dock-yards. See: Merchant Seamen in 1798, Health Care on Federal Enclaves, and Really Silly Journalists.

Now I will show you where the Constitution grants authority to Congress to require adult citizens to get armed!

Woodrow Wilcox


The Constitution Authorizes Congress To Require Citizens to Buy Guns and Ammunition.

In 1792, Congress passed “An Act more effectually to provide for the National Defense by establishing an Uniform Militia throughout the United States”.2 This Act required all able-bodied male citizens (except for federal officers and employees) between the ages of 18 and under 45 to enroll in their State Militia, get a gun and ammunition, and train.


Does Congress have authority in the Constitution to require this?  Yes!  Article I, Sec. 8, clause 16 says Congress has the Power:

“To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;” [boldface mine]

That is what authorizes Congress to require adult male citizens to buy guns and ammunition.

As Section 1 of the Militia Act of 1792 reflects, the “Militia” is the citizenry!  Our Framers thought it such a fine idea that The People be armed, that they required it by law!  See, e.g., the second half of Federalist Paper No. 46 where James Madison, Father of Our Constitution, speaks of how wonderful it is that the American People are armed – and why they need to be. 3

So!  In the case of Congress’ requiring adult citizens to buy guns and ammunition, Congress has specific authority under Art. I, Sec. 8, cl.16.

In the case of Congress’ requiring ship owners who use the federal dock-Yards to pay the fees to fund the marine hospitals at the dock-Yards, Congress is granted by Art. I, Sec.8, next to last clause, a general legislative power over the federal enclaves, such as dock-Yards.4

But for the country at large, Congress has no broad grant of legislative powers. There, Congress’ powers are few, limited, and strictly defined.  See: Congress’ Enumerated Powers.

Now, let us look at Obamacare.

What Clause in The Constitution Authorizes Congress to Force Us into Obamacare?

Nothing! Over the Country at large (as opposed to the federal enclaves), Congress has only enumerated powers.  These enumerated powers are listed in Art. I, Sec. 8, clauses 1-16 and in the Amendments addressing civil and voting rights. No enumerated power authorizes the federal government to force us into Obamacare.

So, Professor Elhauge introduces a nasty bit of poison.  He says:

“Nevermind that nothing in the text or history of the Constitution’s Commerce Clause indicates that Congress cannot mandate commercial purchases.”

Do you see what he is doing? Surely he knows that Obamacare is not authorized by any enumerated power.  So!  He asserts that nothing in the commerce clause says Congress can’t force us into Obamacare.  He thus seeks to pervert Our Constitution from one of enumerated powers only, to an abomination which says the federal government can do whatever it pleases as long as the commerce clause doesn’t forbid it.

Furthermore, what he says is demonstrably false.  The Federalist Papers & Madison’s Journal of the Federal Convention show that the purpose of the interstate commerce clause is to prevent the States from imposing tolls & tariffs on articles of merchandize as they are transported through the States for purposes of buying and selling. For actual quotes from Our Framers and irrefutable Proof that this is the purpose of the interstate commerce clause, see: “Does the Interstate Commerce Clause Authorize Congress to Force Us to Buy Health Insurance?”.

Obamacare is unconstitutional as outside the scope of the legislative powers granted to Congress by Our Constitution. And it does much more than force us to buy medical insurance. Obamacare turns medical care over to the federal government to control. Bureaucrats in the Department of Health and Human Services will decide who gets medical treatment and what treatment they will get; and who will be denied medical treatment. If you think the federal government is doing a great job feeling up old ladies and little children at airports, wait until they are deciding whether you get medical care or “the painkiller”.

Folks! The Time has come that we must recognize that Social Security and Medicare are also unconstitutional as outside the scope of the legislative powers granted to Congress by Our Constitution. We must confess that it is wicked to seek to live at other peoples’ expense! And when a People renounce Personal Responsibility – as we did when we embraced Social Security & Medicare – the federal government takes control.

Social Security and Medicare are fiscally bankrupt. Obamacare, which will prevent old people from getting medical care, is the progressives’ way of dealing with the unfunded liabilities in these programs: Kill off old people by preventing them from getting medical care!

The Piper will be paid. Shall we pay him by killing off old people?

Or, shall we return to Personal Responsibility and dismantle (in an orderly fashion) the wicked, unconstitutional, and fiscally unworkable Social Security and Medicare programs?


1 Our Framers gave us an elegant system of Checks & Balances: Each branch of the federal government has a “check” on the other two branches.  This is expressed primarily in the Oath of Office (Art. VI, cl. 3 & Art. II, Sec. 1, last clause) which requires each branch to obey the Constitution and not the other branches! The supreme Court’s check on Congress is to declare their Acts unconstitutional: See (in addition to the Oath) Art. III, Sec. 2, cl. 1; Federalist No. 78 (8th -15th paras); and Marbury v. Madison (1803).

Congress’ check on the judicial branch is to impeach and remove federal judges who usurp power (Federalist No. 81, 8th para).

2 Here is the URL for the Militia Act of 1792:  Read it! And note how short it is.

3 In “The Patriot”, Mel Gibson’s character commanded a South Carolina Militia – civilians who took up arms against the British. Everyone knew that “the Militia” was the armed citizenry – farmers, trappers, shopkeepers, clergy, etc.  It still is.

4 Attorney Hal Rounds provides fascinating additional information on this issue: “Ships will dump sick sailors wherever they may make landfall, and the locals have the burden of dealing with the victim. Their care then raises the legal right to compensation for their services, which the law of nations allows to be levied against the nation, not just the owners, of the ship.” For Mr. Round’s full comment see the Postscript of April 7, 2012 here. PH

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Publius Huldah is a retired litigation attorney who now lives in Tennessee. Before getting a law degree, she got a degree in philosophy where she specialized in political philosophy and epistemology (theories of knowledge). She now writes extensively on the U.S. Constitution, using the Federalist Papers to prove its original meaning and intent. She shows how federal judges and politicians have ignored Our Constitution and replaced it with their personal opinions and beliefs. She also shows how The People can, by learning our Founding Principles themselves, restore our Constitutional Republic.
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  • Thank you, Publius Huldah.  You’ve explained very well what has confused me for some time.  I just cannot fathom the ignorance, stupidity or moral turpitude that would compell a Harvard Law professor to pen such misleading and anti-constitutional drivel.  You used the word “wicked;” I think that will do very well.

  • Jimbarblee

    Publius thanks for this information-most interesting for me.   What may compel a Harvard Law Professor is “Obama Stash.” 

  • Publius,
      You speak with such clarity and understanding.   Obviously, Art I Set. 8 of the U.S. Constitution does not allow for a national health care, but do you think socialized health care is allowed at the state level or local level, like Romney is stating? 

    • Yes, Romney got it right.  He seems to understand that two different Constitutions are involved - the U.S. Constitution, and the Constitution of the State of Massachusetts.

      Clearly, the U.S. Constitution  does NOT authorize the federal government to take control of the medical treatment of The People - we did not delegate that power to the federal government.  Power over medical treatment was retained by the States or The People.

      Apparently, the Constitution of the State of Massachusetts permits the State government to get involved in medical treatment.  And Romney said, I believe, that most of the people in Mass. wanted the program.

      So,  if the People of a State want socialized medicine where their state government controls medical care, they are free to get it if their State Constitution permits.  And if their State Constitution doesn’t permit, then they can amend their State Constitution. 

      THIS is “federalism” in practice.  Romney seems to be the only one of the Republican candidates who understands this concept!

      James Madison said it in Federalist No. 45 (9th para):

      “The powers delegated by the proposed Constitution to the federal
      government are few and defined. Those which are to remain in the
      State governments are numerous and indefinite. The former will
      be exercised principally on external objects, as war, peace, negotiation,
      and foreign commerce; with which last the power of taxation will,
      for the most part, be connected. The powers reserved to the several
      States will extend to all the objects which, in the ordinary course
      of affairs, concern the lives, liberties, and properties of the
      people, and the internal order, improvement, and prosperity of
      the State.”



      • You are 100% correct about the constitutionality of RomneyCare.

        However, whether it’s constitutionally allowed or not, socialized health care remains one of the most asinine and counterproductive ideas ever devised.

        Just wanted to be clear on that. 🙂

        • That is True!  The idea was that when one State went astray and got involved in asinine schemes, the damage would be limited to that one State - AND the other States would learn by the example.

      •  Publius,
        Thanks for your response.  I feel better about Romney’s stance on his “Romney Care” going into the national election.  This issue might be helpful in furthering the ideas of federalism over nationalism…. I think we have to paint a picture that people (liberal-leaning) can understand
        (Founders’ utopian vision of federalism and republicanism, not the
        socialist utopian vision that many find so attractive.) , then they
        would support the repeal of the 14th, 16th, and 17th Amendments.  We
        must simplify our message and explain our vision and dreams of America’s founding principles.  The current Tea Party message is so broad and easily confused, a new and precise message of federalism must be enacted. IMO.  I’ll take any and all help.

  • ManifoldSky

    Your understanding of the language used in Article I, Sec. 8, clause 16 is deeply flawed. Regardless of your person political convictions on the matter, the language simply does not support your interpretation.
    “To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress”

    In this Article, Congress is empowered to PROVIDE FOR these functions (presumably through some form of tax). It does NOT expressly give them the authority to require these arms be purchased by the citizenry themselves. To do so would require an additional authority. This additional authority, NOT expressly stated, can easily be extended to cover the requirements created by the affordable care act.

    Language can not be twisted to say or imply things that it does not actually say or imply just because it furthers a particular political agenda. There is no reasonable reading of this clause that expressly empowers the Congress to require gun purchasing, just that it could secure funds through some unnamed vector to allow for their procurement.

    • Oh my!  Such a display of resentment. And ignorance.  And power lust.  And a substitution of civil government for God as The Provider of all our needs.

      Re the ignorance: You need to start at the beginning - with the concept of delegated and enumerated powers. Each branch of the federal government (there are 3 branches) has only those powers which were delegated to it in the Constitution.  For our purposes here, the enumerated powers delegated to the Congress and those delegated to the President are relevant.  Fortunately, I have papers on both!   In my paper above, I link to a paper on “Congress’ Enumerated Powers”.  Read it!  And here is a paper on the President’s Enumerated powers:
      Read that also.

      You will find nothing in the federal Constitution which authorizes the federal government to take power over the medical care of The People.  “Medical care” is not one of the enumerated powers - it is reserved to the States or to The People.

      BUT!  War is a power delegated to the federal government!  See Art.I, Sec. 8, clauses 11-16.

      Now!  I know that what progressives hate more than anything (after Our Glorious Declaration of Independence and The Creator God) is an armed citizenry.  Oh, the progressives do not want The People to be able to defend themselves from the federal government!  What they HATE is the idea that anybody can have a gun unless the federal government buys it and issues it to them. And they want only those people who work for the federal government (in one way or the other)  to have guns.  Right?   Yes, only people who work for the federal government and who are willing to shoot unarmed nursing mothers in the head, and 13 year old boys in the back should have guns (Ruby Ridge), right?

      But the American People were armed from the beginning:  They hunted to eat.  They defended themselves and their livestock from poisonous vipers & savage beasts.  They sometimes fought Indians.   They fought in King Phillips’ War, the French & Indian War, and they took up arms against the British in our Glorious Revolution.  Citizens - the Militia - the farmers, shopkeepers, trappers, artisans  - those who were commanded by Mel Gibson’s character in “The Patriot”.  They bought their own guns.  Imagine!  A People who bought their own stuff!

      Before the Constitution was ratified, James Madison literally went into raptures in Federalist Paper No. 46 about how wonderful it was that the American People were armed.  He spoke of the countries in Europe where the People were disarmed by their oppressive civil governments.  But not here - in this Land of the Free and the Home of the Brave.  No, here, we have manly men and womanly women who defend their own hearths & home & families & neighbors & communities & States.  READ the last half of Federalist Paper No. 46 where Madison speaks of this.

      So!  In 1792, by the time of the passage of the Militia Act to which I refer in my paper, Americans were already armed.  They had their own rifles, ammo, and other equipment. 

      What you reveal in your comment is the mindset of the welfare parasites in New Orleans after Hurricane Katrina:  People sitting around waiting for “the government” to do something.   To give them stuff. To rescue them.  No manly men or womanly women there to take charge and set things right.  Passivity.  Dependence.

      Today, the dependents created by the welfare programs pushed by the progressives want  free stuff: free medical care, free cell phones, free food, free schooling, free housing, etc.  The progressives love this dependency - because it gives them power over these pathetic human beings who have their hands out.  And they don’t want people to have anything which does not come from the government.  Because they want total power over other people.

      But these things are not “free” - someone else pays for them:  either taxpayers, or the money is borrowed to be paid back by future generations, or the system will eventually collapse. 

      So!  Respecting the arming of the Citizen Militia:  Manly men (as opposed to metro-sexual wusses & wimps and welfare parasites) defend their own families & communities.  A manly man does NOT say to the federal government, “I will not defend my family & my community unless you give me a FREE GUN & AMMO!” 

      So, instead of levying a tax to buy guns & ammo to then distribute to the adult able-bodied male citizens, Congress just said, You buy the gun & ammo and sign up for your local Militia.    So Congress was just “codifying” existing practice.  These manly men were already armed.  

      One of the purposes of the Militia - the armed Citizens - is to protect The People and The States from the federal government if it usurps powers not delegated to it by the Constitution.  To ensure that the Militia was not a slavish servant of the federal government, Art. I, Sec. 8, cl. 16 “provides” that the STATES are to appoint the Officers of the Militia and are to conduct the Training of the Militia.  See also (in addition to Federalist No. 46) Federalist No. 29 where Hamilton says:

      “…if circumstances should at any time oblige the government
      [the federal government] to form an army of any magnitude that army can never be formidable
      to the liberties of the people while there is a large body of
      citizens, little, if at all, inferior to them in discipline and
      the use of arms, who stand ready to defend their own rights and
      those of their fellow-citizens. This appears to me the only substitute
      that can be devised for a standing army, and the best possible
      security against it, if it should exist.”

      You need to understand:  Our FRAMERS saw that one of the purposes of the Militia - the armed citizens - was to defend their STATES from the federal government when it usurped powers!   But YOU want the Militia to be dependent upon the federal government for their guns and ammo!  Well, gee! That defeats one of the purposes of the Militia, doesn’t it?

      Look again at Art. I, Sec. 8, clause 16:  Congress is to “provide” for organizing, arming, and disciplining the Militia…  

      Congress “provided” for the “organizing” by requiring able-bodied male citizens of the designated ages to report to their local STATE-appointed Militia officer and by prescribing the discipline which the STATE-appointed Militia Officers would employ.  Congress “provided” for the arming by telling them to get a gun and ammo [things which manly men already had!].   

      But YOU see the word, “provide” and you think “FREE STUFF!!!!!!!”  YOU see the federal government as “The Great Provider” - it taxes some people (or borrows money)  to buy stuff to give to other people.  That is your mind-set - it is the mind-set of the welfare parasite and of the Ellsworth Tooheys who seek power over other people.

      But the verb, “provide”, has other meanings than “free stuff” - e.g., to take measures for counteracting or escaping some contingency.   

      Our Framers and our Founding generations were real men & women who bought their own stuff.  They did not depend on the federal government for their needs. 

      So!  Be very careful before you try to take on old ladies who really do know what they are talking about.PH

      •  Well said PH.  It is about time the gloves came off.  If this country is to survive the people have to get the same backbone that our founders had.  The people need to realize that opinions do not trump truth.

      •  I like the analogy Rush used when describing the dangerous principles of welfare - He asked why do you think national parks have signs posted not to feed the animals (especially the bears)?  Well. we all the answer to that, so same goes for the poor (not the truly needy).
         Perhaps Ben Franklin summed it up best, “I am for doing good to the poor, but…I think the best way of doing good
        to the poor, is not making them easy in poverty, but leading or driving
        them out of it. I observed…that the more public provisions were made
        for the poor, the less they provided for themselves, and of course
        became poorer. And, on the contrary, the less was done for them, the
        more they did for themselves, and became richer.”
        —Benjamin Franklin