Washington is in a dust-raising frenzy to capitalize on the murder of a score of children and teachers in Connecticut, hoping to erase a whole class of technology from our society – firearms. Some states have joined the effort, aimed - in name only - at curbing crime and protecting children, etc. etc. Their exploitation of the horrendous murders is focused on registering all guns, making lists of every gun-related purchase, banning the most popular styles of guns, and making sure that each gun has to be reloaded frequently.
In counterpoint, several states have acted to prohibit the effects of the proposed firearm measures within their jurisdictions. Kentucky, Wyoming and Montana have passed bills in at least one house that prohibit enforcement of any new federal regulation by state officials, and over a dozen other states have introduced such bills, varying only slightly in content.
Tennessee is one state where the “Tennessee Firearms Freedom Act” of 2009 will be strengthened if the current bill (SB0250/HB0248) is enacted. This bill, like those in other states, is designed to impede or prevent enforcement, within the state of Tennessee, of any new gun laws coming out of Washington. The debate on this bill in the Tennessee Senate is perhaps one of the most instructive touching on not only gun rights; but also the more fundamental issues of federalism – how our nation was structured to protect the People against government overreaching.
The result will be perhaps the most critical test of the concept of federalism since the nation was founded.
To comprehend the gravity of the issue, it is necessary to review the reason the Constitution built the particular structure that is the government of these United States.
Our founding generation had just freed themselves from a tyranny of the usual form in that era, a monarchy. Surprisingly well educated, the population at that time, despite frequent illiteracy, knew about civilizations of the past, both in the classical Greek and Roman eras, and in the more recent and contemporary history of Europe. They had experienced and studied the nature of despotism, and they knew that the nature of humans is to take power and use it. Once having power, history shows that, inevitably, it will be abused. The abuse can crop up in individual enforcement acts by cops, spurred by passing whims to dislike a motorist at a traffic stop; or blast across an entire nation, with policies that condemn a whole class of citizens and sets out to destroy them.
The founders saw that this tendency relied on concentration of power in one entity – a king, a parliament, or an emperor – so they designed a structure where the powers of government were allowed to exist, to meet the needs of the nation; but were cut into segments so that they could be kept separate and manageable by a vigilant populace.
All of us have – in the past, at least – been instructed that our government has three branches, in order to create a separation of powers. It is perhaps less well taught that the reason powers were separated was to motivate the different departments to work against each other much of the time. Only when an action was seen to help all the various interests would all the branches actually come to agreement, and act on the plan.
The branches are well-recited by students: Legislative, Executive, and Judicial. But it is only weakly remembered that these branches have powers that overlap only a bit, and the remainder of power allotted to each branch was intended to be exclusive and jealously guarded. Legislation was to be only allowed in Congress, not delegated to the executive branch, or abdicated to the judicial, and so on.
But it is rarely observed that division of our federal government into separate branches is only one level of the separation of powers that was designed to protect us from the tyrants whom the founders knew would sooner or later slither their way into one power. The first segment of power – the fundamental consent to be governed at all – was retained by the People. This was expressed more in the Declaration of Independence than in the Constitution, and has therefore been deemed irrelevant to a large degree by the courts. But the Constitution does give that retained power an important role in the process of elections of legislators and the executive.
There is another separation in the divisions of power outside those granted to the federal government: The States. The Constitution specifically rejected the structure of totalitarianism, a single, central government that holds all the governing power. Such governments establish subdivisions – states, provinces, or whatever they may be called - that merely administer the rules set out by that central power. That is not how the Constitution relates the federal government to the states.
Instead, the states had – originally – much power to control the federal government. This was one more “separation of powers” embodied in the Constitutional scheme. Congress consisted of two chambers, the House of Representatives, and the Senate. The House, as its title indicates, served to represent the people of the nation as a whole, with votes distributed by population. But the Senate was to represent the interest of the state governments, each of which was to have a power equal to the others, regardless of population. Until the 17th Amendment erased this power, the state legislatures appointed Senators. It is easy to observe the erosion of the separate role of the states ever since.
Within the government’s branches, the separation of Congress into two chambers was intended to be a further separation of powers. Each chamber was intended to oppose the actions of the other if the interests of the states, or the people, respectively, or the Constitution itself, would be harmed by some act. (Note the contrast between the founders’ hopes of one chamber blocking the other and the whining about “gridlock” in the press today. Ignorance, indeed, reigns supreme.) This separation was critical because the legislature is the real source of policy in the federal government. The President does have a “bully pulpit” that we see as a dominating position for the expression of policies. But the laws that are actually passed are the official policy expressions of the government, and the president has only an advisory role, and a limited power to veto enacted policies.
In allocating the power to establish national policy, and to enact the laws that were to implement those policies, the power within the federal government was limited by listing only certain powers. These appear mostly in Article I, Section 8 of the Constitution.
These separations of power were crucial to the Constitution’s objective (“… to preserve the blessings of Liberty to ourselves and our posterity…”) This - the structure of the new government - was to protect the People from encroachments by any level. In arguing to support adoption of the new Constitution, Madison promised in the Federalist (Number 45) that:
“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 [federal powers] 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.”
Madison promised this allocation of power, with the overwhelming dominance of daily affairs left to the states, as the way liberty would be defended from an overbearing central power.
Despite his promises, too few states trusted this structure with even the limited powers in the list. They refused to ratify the Constitution until promises were made that further restraints would be created in a Bill of Rights. When this Bill of Rights was finally ratified – and the last two states did not join the union until they had this list of additional restraints in their hands – it wrapped up the restraints by specifying:
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.
Amendment # 10
While the subject matter of the Firearms Freedom Acts in Tennessee and those of the other states is gun rights, the fundamental question is whether to preserve the role of the states in defending the rights of their citizens from the federal government. It is the survival of federalism, and therefore the whole idea of the Constitution, that is at stake.
The Tennessee bill first came under discussion in the Senate Judiciary Committee on February 19th. It is interesting to note that the sponsor of the bill, Senator Mae Beavers, was chairman of this committee last term; but was replaced by young Senator Brian Kelsey, reputedly because Beavers’ actions showed too much independence from the Republican establishment’s control.
In that hearing, Committee Chairman Kelsey mused over questions like whether an amendment was superseded by the part of the Constitution it changed - specifically whether the Tenth Amendment, which provides that states have powers not allotted to the federal government, is ineffective because the Supremacy Clause in Article VI states that federal laws are supreme, and contrary state laws are void.
This question is absurd, because the whole purpose of an amendment is to address some deficiency in the original plan. The deficiency addressed in the 10th Amendment is the lack of an express guarantee that the federal supremacy asserted in Article VI only exists when a power being exercised in a federal action is one of the powers enumerated. The 10th Amendment corrected that shortcoming, and it modifies the supremacy clause accordingly. And this is the real issue in this bill.
The 10th Amendment certifies that acts of the states taken under their laws are supreme within their jurisdiction. The Supremacy Clause provides an exception to that rule that allows federal laws supremacy when, and only when, the federal law is based on an expressly enumerated power, and the state law directly conflicts with that specific federal power as enacted.
There is consequently no authority to supersede state acts that prohibit the administration of federal laws within the respective states unless there is a clear, Constitutional, authority for the particular federal law.
The state bills causing such controversy today, like the one in Tennessee, include proposed state actions that will prohibit state officials from enforcing particular federal actions:
One anticipated class of federal actions would require state officials to administer a federal gun regulation. The Supreme Court of the United States has expressly held that there is no Constitutional authority for the federal government to wield such power:
“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the State’s officers directly. … no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.” Printz v. United States 521 U.S. 898 (1997)
Tennessee, and other states that prohibit their officials from acting as administrators of federal laws, are entirely within the bounds of their retained sovereignty.
Another class of anticipated federal action is to ban a class of firearms – specifically the hazy class demonized as “assault weapons,” and more specifically, “high capacity magazines” associated with such guns. This is actually a class of guns that has become one of the most popular single configurations in recent years, and is widely used in various recreational and hunting activities. Spectacular but isolated news events aside, they are used in criminal acts less than most other classes of weapons, including blunt objects.
And the Supreme Court has addressed the banning of a complete class of firearms as a power withheld from the federal government:
“… The handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society for [self defense] ... The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. … the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. … what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.”
District of Columbia v. Heller, 2008
These foundations for denying federal authority are established. When the federal government attempts to control state officials, or to ban a class of arms, there is no Constitutional foundation for it. The states are justified in withholding their support, and in defending their citizens against such attempted takeovers.
Some opponents have derided these bills as attempts at “nullification.” Nullification, they claim, has been attempted and has always failed.
Nullification was, it is often noted, not addressed in the Federalist Papers. But the discussion of federal authority limitations in Federalist # 45, is followed in Federalist #46, by a more abrupt explanation.
A federal government that overreaches its defined powers is not to be resisted by sullen nullification, one recalcitrant state at a time. If it becomes necessary to face an out-of-control federal government, the acts necessary to preserve our liberties burst out of the merely political, and take the form of urgent and forceful state and citizen action. Again, we look to the promises and guidelines that the founding generation held in their hands as they accepted the Constitution:
Federalist # 46: ”… ambitious encroachments of the federal government, on the authority of the State governments, … would be signals of general alarm. Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole. … unless the projected innovations should be voluntarily renounced, [an] appeal to a trial of force would be made …”
In case that statement was not clear enough, Madison clarified it:
“Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.”
This promise and guide illuminates the role of the states as the primary defenders of the liberties of the people. It voids any claim that the acts of the federal government enjoy supremacy when they are “enterprises of ambition” rather than exercises of enumerated powers.
And this guideline spotlights the role of the 2nd Amendment in the Constitutional scheme: Fearing the powers allotted to the federal government would be exceeded, there was no ratification of the Constitution until the promise of a Bill of Rights was committed to, and express preservation of the right to keep and bear arms was essential to that acceptance.
The Tennessee bill additionally calls for charging any person – including federal officials - violating its prohibitions with a felony (now amended down to a misdemeanor.) In the Judiciary Committee meeting of February 27, Senator Stevens reported that he had discussed this provision of the bill with the sheriffs in his counties. He reported that they had all opposed any requirement that they arrest their friends in the federal government. “We see them in church every Sunday…” and it would destroy their close cooperation in efforts to prevent crime.
Though it may be desirable for law enforcement among different levels of government to cooperate and be friends, this fraternizing must not be allowed to turn into bonding against the interests of the citizens being served.
In the early days of the republic, law enforcement was a local activity, with few professional law enforcement officers – sheriffs – who had a power to enlist the services of citizens when necessary. In the hustle and growth over decades, police forces grew up as a convenience to take that duty off the hands of the citizens. In the process, many of the protections inherent in having neighbors police neighbors disappeared. Becoming a separate fraternity by occupation, the attitudes and values of police have deviated from the common citizen. As is natural, the duty to enforce laws drives a desire to make enforcement tools easier to access and use. The requirement to have a warrant before a search can be conducted, for example, has been eroded by courts finding that a citizen has no expectation of privacy when in public – so certain forms of searching are permissible without a warrant. Requiring you to report on your income replaces the government’s requirement to search your papers. And so away goes the restraints that keep the citizens in control, and we find ourselves on the bottom.
The separation of powers, as encoded in the 10th Amendment, requires our law enforcement officers to face the sometimes unpleasant duty of confronting their peers in federal agencies, and stopping them from exceeding their authority. If that excess includes violation of a state offense, such as theft, false arrest, or homicide, the state has a duty to protect its citizens according to established statutes.
Senator Stevens is among many who seem to value the fraternal character of being in government over the unpleasant necessity of occasionally chastising otherwise friendly acquaintances.
And this is the test of the Firearms Freedom Acts before us today: Will the system of separating powers belonging to the states be preserved? Or will the states themselves preempt the issue by abdicating their explicit role in defending our liberty against a federal government that has taken powers that were never given to it?
If the states fail to pass these acts, we will have our answer: If federalism fails – if the states capitulate or are crushed by the federal usurpation of powers, then the American experiment in Liberty will pass into history as a bright but brief flame, having illuminated what might have been if only humans were capable of restrained self-government.
Hal Rounds is a resident of Tennessee. Born in California, his undergraduate degree was in Economics from the University of California at Santa Barbara. He is an
Air Force veteran of the Viet Nam war, working with munitions including rockets, bombs and, later, nuclear weapons. During a career in air express he attended law school and entered practice. He is presently a member of the bar of the Supreme Court of Tennessee, and the Supreme Court of the United States. He provides Constitutional seminars as the Constitution Refresher.
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