Federal Supremacy Debunked
February 13, 2013 in Activism
On the 4th of February it was reported that Arizona state senator Kelli Ward withdrew a bill that would bar enforcement of new federal gun laws, saying that Senate lawyers believe her bill “doesn’t pass constitutional muster because federal law is supreme” without specifying exactly where in the constitution federal law derives it’s supremacy. But that’s okay, because there are only a few sections which the federal government uses as justification to override the will of the states on these matters:
This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.
thesis: The supremacy clause says that laws made by the federal government shall be the supreme law of the land.
antithesis: The supremacy clause actually says “This Constitution, and the Laws of the United States WHICH SHALL BE MADE IN PURSUANCE THEREOF”, subordinating the federal government to the constitution. Therefore not all federal laws are the supreme law of the land, only the ones that are constitutional. Wherever there’s a conflict between the constitution and federal law the constitution still takes legal precedence, and the 10th amendment of the constitution restricts the federal government to it’s ennumerated powers.
[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes
thesis: Everything Americans do, could possibly do or even DON’T do will affect commerce in some philosophical way, even if no commerce actually takes place. For example, any action or lack of action could potentially affect insurance prices because every action involves risk of some kind. Therefore all actions are under federal jurisdiction.
antithesis: Nowhere does it say “commerce OR anything that could substantially affect commerce”, so this enummerated power is limited to acts where actual commerce takes place. No interpretation of the commerce clause by the Supreme Court has the power to change the actual words contained within the clause itself. The constitution, being the supreme law of the land, takes legal precedence over the opinion of any judge REGARDING the constitution. Also, it says “among the states” (meaning interstate commerce) not “within the states”, so commerce that takes place within the borders of a single state does not constitute commerce “among the states” and therefore is not covered by the commerce clause and becomes a 10th amendment state matter by default.
thesis: The commerce clause and the necessary and proper clause TOGETHER is what allows the federal government to regulate anything that could affect commerce.
antithesis: See below.
necessary and proper clause
The Congress shall have Power – To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
thesis: The federal government can pass any law it wants, no matter how oppressive, as long as it’s related in any way to the enummerated powers.
antithesis: Those who use this argument presume that the nessesary and proper clause also grants the federal government the authority to DEFINE what’s “necessary and proper”, even though it doesn’t. Without such authority, the words “NECESSARY and PROPER for carrying into execution the foregoing powers” have a LIMITING effect on federal authority, not an expansive effect. For a law to be necessary for carrying into execution an enummerated power there must be no better way to do it (Example: while a law to charter a central bank to “coin money” and “regulate the value thereof” may be one way to execute those enummeratted powers, it’s not necessary because congress already has the ability to do those things on it’s own without a central bank.) and for a law to be proper it must not violate the constitution or any rights granted by it to individuals or the states. Therefore if a federal law either violates state rights OR is unnecessary the necessary AND proper clause does not apply.
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.
thesis: The 2nd amendment only applies to the millitary or national guard, because it refers to a regulated militia.
antithesis: The part of the amendment that mentions the regulated militia, “A well regulated militia being necessary to the security of a free state”, doesn’t contain the word “shall” and therefore has no effect on law and amounts to nothing more than commentary. Rather, that statement was obviously included to explain the REASON for the law, and not to be interpreted as part of the law itself. The only part of the amendment that matters says “the right of the PEOPLE to keep and bear arms shall not be infringed”, not “the right of the militia”. A 2nd amendment that only protects the millitary’s right to keep and bear arms would be redundant because no government would ever disarm it’s own soldiers to begin with. Therefore the very existence of the 2nd amendment is proof of it’s protection of individual rights to keep and bear arms.
thesis: The 2nd amendment allows for regulation of firearms because it contains the word “regulated”
antithesis: The word “regulated” does not refer to firearms but the militia and in the context of an opinion, not constitutional law.
thesis: The 2nd amendment applies only to arms that existed at the time the constitution was written. The founding fathers would have worded the 2nd amendment differently had they forseen the destructive capability of today’s weapons.
antithesis: The founding fathers wrote what they intended in the 2nd amendment and declared it to be their intention word-for-word when they signed the constitution. The 2nd amendment makes no distinction between different types of arms so by ommission the 2nd amendment must apply to all arms and we must presume that to be the founding fathers’ intention. Weather or not they would approve of today’s weaponry is irrelevent, for this is an argument over law, not opinion.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
No thesis, this is just for reference.
SB 1112 DOES pass constitutional muster because:
1. The 2nd amendment already bans the federal government from infringing on the people’s right to bear arms (IN GENERAL, not just certain types of weapons) and congress doesn’t have the authority to repeal constitutional amendments anyway, only ratification by 3/4ths of the states in a constitutional convention can do that. Therefore the 2nd amendment along with the Supremacy clause already renders any gun control act passed by congress null and void from the very beginning. The state bill just enforces what’s already in the constitution.
2. Nowhere in the constitution does it say one political entity is to have absolute authority over another, but rather it takes the different roles and responsibilities of government in general and divides them up between the federal government and the states. The federal government is supreme in a few enummerated areas, while the 10th amendment grants the states ultimate authority over all other matters. If the constitution doesn’t specifically say that the federal government has the power to do something, it becomes a state matter by default and nowhere in the constitution does it say that the federal government has the authority to regulate firearms.
If in the purely hypothetical situation a state lawmaker is informed by an agent of the federal government of a “secret” state of emergency that compels him or her to introduce, withdraw, or vote a certain way regarding any legislation the lawmaker would not be legally obligated to comply:
1. First, states of emergency must be declared openly in order to exist, therefore there is no such thing as a “secret” state of emergency.
2. Presidents throughout America’s history have declared national emergencies, including George W. Bush whose emergency declaration is ongoing to this day, even though presidents don’t have constitutional authority to declare states of emergency any more than they have the authority to declare war. The only emergency provision in the constitution is in Section 1, which describes the powers of CONGRESS, in section 9 which limits congress’s power: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it”. If you’re really concerned about the constitution:
a. Only congress can declare a national emergency and even then all they can do is suspend Habeas Corpus, not the entire constitution.
b. Because the constitution doesn’t enummerate any further emergency provisions, all of them are reserved to the states via the 10th amendment.
c. Even if congress passes laws to the contrarty, those laws are already nullified by the supremacy clause and the 10th amendment. Only ratification by 3/4ths of the states in a constitutional convention can override the constitution.
3. Someone with public credibility, like a state lawmaker for example, can simply ignore any secret threats to his or her life by the federal government if he or she informs the public that those threats were made and that he or she is not planning to commit suicide. This would take away the federal government’s ability to kill that person secretly and would make the public relations disaster that his or her death would cause outweigh the benefits of stopping that person from doing whatever it was that he or she was told not to do, resulting in that person being able to “do the right thing” without risk of death.
4. A public figure who is being blackmailed by the federal government with embarassing information which that person feels would threaten his or her job if that information got out could simply inform the public of that embarrasing information along with the fact that he or she is being blackmailed by the federal government so he or she won’t do the right thing for the people. This will take the wind out of the blackmailer’s sails and make the one being blackmailed look like a hero, rather than a social deviant.
For all these reasons, senator Ward DOES have the power, both constitutionally and practically, to re-introduce SB 1112 if that is really what she wants.
If you believe in states rights to nullify unconstitutional federal laws then contact her, or give her office a visit if you’re in the phoenix area, enlighten her about these facts and tell her to re-introduce SB 1112.
Forget about SB 1112, there’s another bill in the Arizona house of representatives that’s exactly the same word-for-word. If you’re in Arizona, call your state representatives instead and tell them that no matter what their lawyers say HB 2291 IS constitutional and they have no excuse not to pass it.