Gun Control, the Dick Act of 1902, Bills of Attainder & Ex Post Facto Laws

 Shooting a Glock 23 at Indoor Shooting Range at Sarasota, Florida (Photo credit: Ratha Grimes)

Shooting a Glock 23 at Indoor Shooting Range at Sarasota, Florida (Photo credit: Ratha Grimes)

The latest round of rubbish flooding our in boxes is an ignorant rant claiming that the Dick Act of 1902 (which respects our Right to be armed) can’t be repealed because to do so would “violate bills of attainder and ex post facto laws”.


Who dreams up this stuff? Does anyone check it out before they spread it around?

Of course we have the God-given right to keep and bear arms, to self-defense, etc., etc.  Our Declaration of Independence (2nd para) recognizes that our Rights come from God and are unalienable.

In addition, the 2nd Amendment to our federal Constitution recognizes that this God-given right to keep and bear arms is to be free from any interference WHATSOEVER from the federal government.

Our Framers were all for an armed American People – they understood that arms are our ultimate defense in the event the federal government oversteps its bounds.  See, e.g., what James Madison, Father of Our Constitution, writes in the second half of Federalist Paper No. 46!  The reason the Citizens – the Militia – are armed is to defend ourselves, our families, our neighborhoods, communities, and States from an overreaching, tyrannical federal government.

Furthermore, the federal government is nowhere in the Constitution granted authority to restrict, in any fashion whatsoever, guns, ammunition, etc. Thus, ALL laws made by Congress, ALL regulations made by the Bureau of Alcohol, Firearms, and Tobacco (BAFT), are unconstitutional as outside the scope of the powers granted to Congress and to the Executive Branch by our Constitution. Regulation of arms and ammunition is NOT one of the “enumerated powers” delegated to Congress or the Executive Branch.

Furthermore, all pretended regulations made by the BAFT are also unconstitutional as in violation of Art. I, Sec. 1, U.S. Constitution, which vests ALL legislative powers granted by the Constitution in CONGRESS.   Executive agencies have no lawful authority whatsoever to make rules or regulations of general application to The People!

In addition, the President and the Senate may not lawfully by treaty do anything the Constitution does not authorize them to do directly.   Since the Constitution does not authorize the federal government to disarm us, the federal government may not lawfully do it by Treaty.   See,

But the assertion that one Congress may not repeal acts of a previous Congress is idiotic.

And the assertion that Congress can’t repeal the Dick Act because a repeal would “violate bills of attainder and ex post facto laws” shows that whoever wrote that doesn’t know what he is talking about. He obviously has no idea what a “bill of attainder” is, and no idea what an “ex post facto law” is.

This accurately explains what a “bill of attainder” is:

An “ex post facto” law RETROACTIVELY criminalizes conduct which was not criminal when it was done.

Say you barbecued outside last Sunday. That was lawful when you did it. Next month, Congress makes a pretended law which purports to retroactively criminalize barbecuing outdoors. So, now, what you did is a crime (for which you are subject to criminal prosecution); even thou when you did it, it wasn’t a crime. That is an ex post facto law.

Now, say Congress passes a pretended law making possession of firearms a crime and ordering everyone to turn in their guns. Only if you do not turn in your guns will you have committed a “crime”.  That is not an ex post facto law because if you turn in your guns, you won’t be criminally prosecuted. The “crime” is the failure to turn in your guns – not the prior possession of guns.

Such a law would be totally UNCONSTITUTIONAL, because gun control is not one of the enumerated powers of Congress. Thus, the law would be outside the scope of the powers delegated to Congress.

It would also be unconstitutional as in violation of the 2nd Amendment.

But it would not be an ex post facto law.

People shouldn’t sling around terms, the meanings of which, they do not understand. It is immoral.

If TRUTH spread as rapidly as lies, our problems would have been resolved long ago.  But if People can come to love TRUTH more than they love the ignorant rubbish they circulate, perhaps it is not too late to restore our Constitutional Republic. PH


1 In Federalist Paper No. 84 (4th para), Alexander Hamilton says re ex post facto laws (and of the importance of the writ of habeas corpus):

“…The creation of crimes after the commission of the fact, or, in other words, the subjecting of men to punishment for things which, when they were done, were breaches of no law, and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny…” 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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  • Dave

    Really, really good Publius Huldah. I’m shocked everyday to see & hear the number of people, including the liberal media, who believe the President can ban guns with an executive order. Their ignorance of the constitution is staggering.

    • highlanderjuan

      Dave, what you say is true, but it only works when we, as a country, operate under the rule of law. When our country operates in a lawless condition, as it does now, all bets are off.

  • Dave

    Can I come to the conclusion that it is unlawful for government to tax guns and ammo? Taxes are certainly an infringement….

    • Publius Huldah

      That is an interesting question, Dave. The Constitution authorizes Congress to lay and collect taxes, duties, imposts, and excises (Art. I, Sec. 8, cl. 1). Taxes of the foregoing kind [as opposed to the direct taxes levied on States under the rule of apportionment in Art. I, Sec. 2, cl. 3] were generally on imports or on carefully selected domestic articles of consumption. I think I recall that the idea was to avoid taxing necessaries so as not to oppress the poor or farmers who would be short of cash. An excise tax on whiskey was one of the first. I think a tax on carriages was next. These were luxury items, not necessaries.

      I have no writings of our Framers on the precise point you raise. But firearms and ammo were - and are - necessaries.

      As you point out, a tax on arms and ammo is an “infringement” - either an actual or a potential infringement. Once a government levies taxes on arms and ammo, what is the limit? If they tax such items, they could raise the taxes so high as to disarm a people in that way.

      So even thou I have no writings of our Framers on this precise point, I suspect you are right, that any tax on guns or ammo violates the 2nd Amendment.

  • Gary

    Thank you for this thought-provoking post.

    If our Declaration of Independence is correct that our rights are from God and are therefore unalienable, and since our Constitution is built upon the foundation of the Declaration of Independence, then to infringe upon any of those rights would be rebellion against God. So when those who call for infringement of an unalienable right claim to do so on moral grounds, they are actually calling moral what is immoral and rebellious. Claiming to do good, they are doing what is evil. God hates rebellion.

    Congress can regulate firearms. The firearms Congress can regulate are those it has purchased and which are under control of the federal government, such as those in the military, the FBI, etc. If the President has any executive order authority regarding firearms or ammunition, it is only for those in the executive branch. The Constitution requires them to leave the rest of us alone. That certainly is a fearful thing for those in power, rightly so, but it is as necessary a check and balance as is the separation of powers and the right for the citizens to vote in open and free elections. Those in positions of power just need to trust us and trust the ones who established the Constitution. They also need to hold themselves to the oaths they took to uphold the Constitution. If they can’t or won’t, they need to voluntarily step down or be removed by lawful means.

    • Publius Huldah

      George Washington’s first Cabinet had (1) a Secretary of State, (2) a Secretary of War, (3) a Secretary of the Treasury, and (4) an Attorney General. Period.

      NONE of the executive departments under the control of the President should be armed. But today, they ALL have armed swat teams. This is all unlawful.

      Furthermore, most of the Executive Department are unlawful because the Constitution does not authorize them to exist. Only 4 or so of ALL the executive department may lawfully exist!

      Most of the “crimes” the DOJ prosecutes today are crimes over which the federal government has NO constitutional authority: The federal Constitution doesn’t delegate to Congress power to criminalize drugs, “hate crimes”, etc. etc. The criminal jurisdiction of the federal government is extremely limited. Read through the Constitution and highlight all the things Congress is authorized to make criminal laws about. Then read this:

      The President’s powers are strictly limited and defined and enumerated. The President is not supposed to have armed swat teams at his personal disposal. Do you see how dangerous this is? A President who controls all these armed thugs in the swat teams in the Executive Branch? Our Framers wanted CONGRESS to be the branch of government which is in charge of the armed forces! Congress is to make the rules for the military, determine appropriations, and decide when we go to war. The President, as CINC, serves merely as top general. Our Framers wanted power over the armed forces to be vested primarily in the largest branch - the legislative branch - elected by The People and the States. Our Framers would be horrified that we have been so stupid as to allow the President to gain total control over large numbers of armed swat teams.

      This explains the lawful powers of the President delegated to him by our federal Constitution:

      Please get a copy of the Declaration of Independence and Constitution and using different colors, highlight all the powers delegated to each of the 3 branches. Once you have done this, and seen how limited those powers are, you will be horrified that the President has armed swat teams at his disposal. Like the tyrants of old - with their personal armies under their total personal control.

  • Sonny Farmer

    Publius - Like you have said repeatably - the civil government’s role is to protect our rights. Banning guns would be in total violation of our rights. But who can regulate? Not to be a smart-***, but I can hear liberals saying, “Then is okay to own a tank, right? Or how about landmines then?” I’m not quite sure how to answer that.
    Another thing, what do you think about UNPROTECTED “gun-free” zones? Heck with more gun laws, this practice needs to be the topic of discussion, IMO.

    • Publius Huldah

      Liberals can’t think. Once one understands this, one sees that liberals never pose a challenge on intellectual grounds.

      James Madison, in the 2nd half of Federalist Paper No. 46, speaks of the armed citizens (farmers, shopkeepers, blacksmiths, teachers, clerks, etc - i.e., the Militia) defending themselves from an overreaching federal government. If the federal government is using only slingshots, then the Militia needs only slingshots.

      If the federal government is using fully automatic weapons and hollow points; then the Militia needs fully automatic weapons and hollow points.

      If the federal government has fully automatic weapons and hollow points, but the people have nothing because the federal government has disarmed them, then democide is on its way. You can count on it.

      We must not forget (although the liberals probably never knew this) that the leading cause of death in the 20th Century was….. civil governments murdering their own People. They did this by the hundreds and hundreds of millions.

      • highlanderjuan

        True, Publius as this film entitled Innocents Betrayed teaches us.

      • Eileen Kuch

        And, they had to disarm these populations, if they weren’t already.

        “When a Government fears the People, there is Liberty. When a People fears their Government, we have Tyranny.” - Thomas Jefferson

      • subconch

        Here is a 1993 essay entitled “How Many Did Communist Regimes Murder?” by Rudolph J. Rummel, out of the University of Hawaii. “Democide” is defined there as non-war murder by government. The statistics are mind-blowing, and they are NOT JUST NUMBERS. I found no correlation to the armed status of these peoples, but it goes to Publius’ last point. It is stunning the level of ignorance to the inherent barbarity of an ideology, variants of which are openly championed today, when its dangers were seemingly self-evident some short 20 years ago. And in light of the unmistakable parallels to today, with respect to the pathways to these democides, it is more than questionable the intelligence of those who would ever seek to disarm themselves in lieu of govt. “security”.

        R.J. Rummel: “Few would deny any longer that communism-Marxism-Leninism and its variants-meant in practice bloody terrorism, deadly purges, lethal gulags and forced labor, fatal deportations, man-made famines, extrajudicial executions and show trials, and genocide. It is also widely known that as a result millions of innocent people have been murdered in cold blood. Yet there has been virtually no concentrated statistical work on what this total might be.”

        Mr. Rummel estimates in this essay, numbers since been revised upward, a midrange (conservative) total of 110 million murders by communist democide from 1900-1987, and at the higher end estimates 260 Million Murders. By comparison, there were 38 million battle-dead in all wars (int’l & domestic) of the same period. The Soviet Union alone (midrange) murdered 62 million, and China (PRC) 35 million.

        Rummel: “How can we understand all this killing by communists? It is the marriage of an absolutist ideology with the absolute power. Communists believed that they knew the truth, absolutely. They believed that they knew through Marxism what would bring about the greatest human welfare and happiness. And they believed that power, the dictatorship of the proletariat, must be used to tear down the old feudal or capitalist order and rebuild society and culture to realize this utopia. Nothing must stand in the way of its achievement. Government-the Communist Party-was thus above any law. All institutions, cultural norms, traditions, and sentiments were expendable. And the people were as though lumber and bricks, to be used in building the new world.

        Constructing this utopia was seen as though a war on poverty, exploitation, imperialism, and inequality. And for the greater good, as in a real war, people are killed. And thus this war for the communist utopia had its necessary enemy casualties, the clergy, bourgeoisie, capitalists, wreckers, counterrevolutionaries, rightists, tyrants, rich, landlords, and noncombatants that unfortunately got caught in the battle.”

  • Henry Retter

    Unfortunately, it doesn’t matter that it’s unconstitutional. Who’s called them on it? When Obama gave an executive order regarding immigration, who did what about it?

    • retiredday

      And that basically is the problem. Whether or not a thing is right or legal or constitutional makes no difference when no one is holding the government’s feet to the fire. They either pay off or intimidate their opposition and just go ahead and do what they want.

    • Publius Huldah

      Henry, The People are the ultimate authority on what is constitutional and what is not. THAT is why we have nullification. Our Framers recognized that in the last resort, The People are the final authority on what it unconstitutional.

      When the federal courts uphold lawless acts of the other two branches of the federal government, then The People are not without resort. Their resort is in nullification.

  • walter conell

    Somewhere down the line members of congress are going to have to do away with under the table money, bribes, lobbyists and their general positions and start becoming MEN and even put their careers at risk and stop the madness this president is committing.

    The man is sick and thinks he is a ruler. He is delusional and actually thinks America likes him and that he is good for this country that is going bust.

  • Steve Pallister

    I thiink it is too late for exactly that reason. They can’t stop it.

  • stonehillady

    The Dick Act of 1902 established the organized militia for what we have today the National Guard & the Coast Guard but still keeps the unorganized guard the American Gun Owner BUT, it states that all 3 militias right to bear arms can not be restricted or regulated. So what that means to me if the unorganized malitia is restricted to only single shot arms & the National Guard can have auto-matic arms that is a major violation & unconstitutional.
    So, what am I getting wrong here ?

  • Bill Dawson

    Obama has been ignoring the Constitution regularly and without penalty, as the press covers for him and the Congress as a whole will not stand up to him. If the people continue to allow him to get away with these power grabs, Obama will certainly attempt to disarm the people and take over the country by force. The people must protect their own rights and refuse to be disarmed. We are the ultimate authority and protector of our rights.

    We are blessed to have the writings of Publius Huldah. Since the news media has become merely a propaganda organ of the leftists, its nearly impossible to learn the truth about Constitutional and American law through them. PH writes about current issues from the perspective of the original intent of the founding fathers. You can read all of her articles at her blog at

  • Charles Heindorf

    Here is my question. I live in NY. After the passage of the SAFE Act, it appears almost all of it is un-constitutional Federally. But under our States Constitution it seems that it might pass the smell test. The Framers intended for the Feds to be beholden to the States. What Constitution trumps the other? My understanding is that I am a New Yorker first and an American second. In my mind that would explain the previous gun bans in other states as well as this one.

    • Charles Heindorf

      Or, this just came to me, is it equally protection under both?

    • Publius Huldah

      I haven’t read the SAFE Act or the New York Constitution.

      “Passing the smell test” is not a constitutional principle! I don’t know what you mean.

      The Constitution provides for the federal government to have supremacy over
      the States ONLY on those few matters delegated exclusively to the federal
      government. Look at the list of powers over the Country at Large which the Constitution delegates to Congress at Art. I, Sec. 8, clauses 3-16: If Congress decides that we will change to metrics (clause 5), the States can’t lawfully prohibit the use of metrics in their States.

      The federal government is “beholden” to the States only in the sense that
      The People elect the Representatives to Congress; the State Legislatures
      were to elect the U.S. Senators, and the small body of wise and prudent men selected by each State were to be the ones who actually selected the President and Vice President.

      If a State Constitution said the State could do any of the things listed in Article I, Sec. 10 of the federal Constitution, then that provision of the State Constitution would be in violation of the federal Constitution and would be held invalid under the “supremacy clause” at Art. VI, cl. 2 of the federal Constitution.

      May a State Constitution lawfully ban guns? NO! Such would be invalid under the Supremacy Clause: See the article linked above under “Similar Posts” titled, “Buy guns, not health insurance”. Really! There is also the issue of whether the Second Amendment applies to prevent States from banning guns. We know it prevents the federal government from banning guns.

      You said, “my understanding” and “in my mind”: We must have a paradigm shift in this Country and stop focusing on our own subjective interpretations and understandings and look instead to objective Facts and logical analysis.

      • Charles Heindorf

        Thank you very much. After reading this here and your blog on WordPress, I am now starting to see it all. I still have a long ways to go. I just did not want to believe that the indoctrination had happened to me. But here it is apparent it has. I used those phrase and terms because that is what I was taught, but now am realizing it was wrong.

        • Publius Huldah

          It is a joy when the light goes on. The great moments in my own life were the paradigm shifts when I realized that what I had believed was wrong and I started going thru my mental data banks and replacing the false with the true.