The Constitutionality of Federal Gun Control Laws and the Question as to Whether Local Resolutions Are Appropriate | Eastern North Carolina Now

    On January 16, 2013, President Obama signed 23 Executive Orders which he claimed are aimed at reducing gun violence. Now begins the initiative to bring his comprehensive gun control scheme to Congress. The cornerstone of the scheme will include more inclusive and scrutinous background checks and a ban on assault weapons. The National Rifle Association, however, doesn't buy the story that the administration is selling. The NRA is using a Justice Department memo it obtained, dated January 4, 2013 and written by one of the Justice Department's top crime researchers, to argue that the Obama administration believes its gun control plans won't work unless the government seizes firearms and requires national gun registration. These, of course are ideas that the White House has not proposed and claims it does not support.

    At this point, Obama wants to ban assault weapons and ammunition magazines exceeding 10 rounds that are produced in the future. And he wants universal background checks for nearly all gun purchases. Today, checks are only mandatory on sales by federally licensed gun dealers, not transactions at gun shows or other private sales.

    The Memo critiques the effectiveness of gun control proposals, including many of President Barack Obama's, such as the registration and the assault weapon and ammunition magazine bans.

    The memo says straw purchases and gun thefts are the largest sources of firearms used in crimes, and says such transactions "would most likely become larger if background checks at gun shows and private sellers were addressed." (Straw purchases are when criminals and those who are legally prohibited from owning a firearm have another person make the purchase for them). The memo says requiring background checks for more gun purchases could help, but also could lead to more illicit weapons sales. Criminals are not going to submit to background checks honestly. They will continue to use false names and offer false information.

    At the same time, President Obama is looking to stack the federal courts with anti-gun judicial nominations. For example, he is currently pushing Caitlin Halligan, currently the NY's Solicitor General and an attorney with a long track record in favor of gun control, for the DC Court of Appeals. In fact, one Senate Republican said that she is the most "anti-Second Amendment nominee Obama has ever put forward." The transformation of America will eventually be completed at the hands of federal court judges who haven't studied the writings of the Founding Fathers and who don't understand the scheme of ordered liberty they envisioned for this country.

    On January 18, Beaufort County, NC was the first local entity in the nation to take a stand against the President's agenda to regulate gun rights and to stand up for the phrase in the Second Amendment which reads "The right of the people to have and bear arms shall not be infringed." The Beaufort County Board of Commissioners passed the strongest Second Amendment Protection Resolution to date in North Carolina. Other counties in the state have followed suit, including Pitt, Franklin, Lenoir, and Cherokee - with varying degrees of strength and effectiveness). And still there are other counties who would like to but have reservations as to what their legal position permits.

    The bottom line is that state and local elected representatives, as well as state and local civil servants, swear an oath to the US Constitution. They pledge a solemn vow, invoking the name of our Creator, to support and defend the Constitution of the United States. The oath is not to support a "living constitution"; nor is it a promise to support any and all actions of the federal government, which is organized under the Constitution. The oath is to obey and support only lawful orders. After all, a legal framework with defined limitations is what is at the heart of our constitutional republic. In America, government is tasked with constraining people in unlawful conduct, but it is also obliged to constrain itself as well. The framework was designed for a specific purpose, and that purpose is articulated most splendidly in the Declaration of Independence - for the free exercise of our God-given rights and liberties.

    In helping those counties, those local Sheriffs, and those state officials assess the legality of taking a position seemingly antagonistic to the federal government, there are a series of questions to ask and answer.

    Is the Particular Federal Law Supreme? -

    The issue at stake is which federal laws are to be considered "Supreme," and thus trump state law where there is any conflict and preclude any state from interfering with or frustrating the federal scheme. The Supremacy Clause reads: "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."

    The general rule - the correct rule - is that constitutional federal law trumps state law where it conflicts. The state law must therefore yield to the federal law. This was the government's argument when it challenged Arizona's immigration bill, SB 1070. In that case, the Supreme Court found that the government indeed is supreme on immigration, but nonetheless upheld parts of the Arizona bill because it concluded that they furthered and assisted the federal scheme.

    The problem is the incorrect assumptions too many government officials make - at both the federal and state level. These assumptions are as follows: (1) That every federal law is supreme law of the land under the Supremacy Clause; and (2) That every federal law is constitutional.

    Is it Constitutional? -

    In looking at federal law, the first question you should ask is whether it is constitutional. Because under the Supremacy Clause, only laws made in pursuance to the Constitution are supreme. If they are not, they are not only unconstitutional but they are also not supreme law.

    As we all know, individuals are free to do whatever they want, unless they are constrained by the law. Government, on the other hand, can only act pursuant to the powers they are expressly delegated in the Constitution. Government needs express authority to act, and when it acts pursuant to powers not delegated or oversteps powers that are intended to be limited, then those acts have no legitimacy and are not enforceable upon the people. That is the contract that the people have with the federal government, under the US Constitution. Same goes for the states and the state constitutions.

    So, the first question to ask is whether the particular federal law has a proper constitutional foundation. All of our Founding Fathers agreed that any act that violates the Constitution is null and void and not a valid, enforceable law. Our entire Constitution consists of limitations and a series of checks and balances. Our Founders talked at length about the checks and balances in the Constitutional Convention. They talked about the separation of powers and the jealous arrangement whereby each branch would jealously guard their own powers from the encroachment of any of the other branches. They would gladly do so to prevent one branch from becoming too powerful in the exercise of government and too powerful over the other two branches. Furthermore, our Founding Fathers build our government on a federal scheme . We are a federation of sovereign states and not a consolidation of people. Our system is federal and not national. In our federal scheme, as embodied by the Tenth Amendment, the precious balance of power and limitations imposed by the Constitution was intended to be kept in check by the tension presented by having two sovereigns - or Dual Sovereignty. A "sovereign" possesses supreme power. A sovereign state, for example, has the supreme power to legislate for its safety, security, people, and best interests. Under our system of Dual Sovereignty, the federal government is deemed to be sovereign (again, the Supremacy Clause) when it acts pursuant to its constitutionally limited and legitimate powers (17 or so in Article I, Clause 8, and about 30-35 total in the entire Constitution). It is a limited sovereign. The states, on the other hand, as articulated in the Tenth Amendment, retain and reserve the great bulk of remaining powers to legislate and regulate within their territories and are therefore sovereign with respect to those powers. James Madison addresses the nature of the division of powers best in Federalist Papers No. 45:

    "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. The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security."

    Even the design of the government itself was premised on the federalist scheme so that the States themselves would intimately provide a necessary check on the power of the federal government. In Federalist No. 45, Madison continues:

    "The State governments may be regarded as constituent and essential parts of the federal government; whilst the latter is nowise essential to the operation or organization of the former. Without the intervention of the State legislatures, the President of the United States cannot be elected at all. They must in all cases have a great share in his appointment, and will, perhaps, in most cases, of themselves determine it. The Senate will be elected absolutely and exclusively by the State legislatures. Even the House of Representatives, though drawn immediately from the people, will be chosen very much under the influence of that class of men, whose influence over the people obtains for themselves an election into the State legislatures. Thus, each of the principal branches of the federal government will owe its existence more or less to the favor of the State governments, and must consequently feel a dependence, which is much more likely to beget a disposition too obsequious than too overbearing towards them."

    In the Constitutional Convention, in discussing the second branch of the legislature - the Senate - the delegates talked about this branch providing an immediate "negative" (ie, a "veto" power) over the actions of government. The Senate was intended to be the physical presence of the States within the structure of the government, always able to protect their interests and protect their sovereign powers. (Of course, this notion of a state "negative" is the basis of the doctrine of nullification).

    In Federalist No. 78, Alexander Hamilton explained the extent of federal power and federal authority:

    "There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid."

    Tennessee's Attorney General, Robert Cooper, for example, wrote a legal opinion stating that Tennessee's SB0250, is an unconstitutional because it violates the Supremacy Clause (Article V, Section 2) of the Constitution). SB0250 was written to expand and amend the Tennessee Firearms Freedom Act to address federal actions in the state. Specifically, the bill adds the following section to the Firearms Freedom Act:

    (a) The general assembly declares that any federal action prohibited by this chapter relating to firearms, firearms accessories or ammunition, whether made in Tennessee or not, is not authorized by the United States constitution and violates the restrictions contained therein and is hereby declared to be invalid in this state; that said federal action shall not be recognized by this state; and that said federal action is rejected by this state and shall be null and void and of no effect in this state.
    (b) Any federal action shall be deemed an intentional violation of state sovereignty and shall be unenforceable within the borders of Tennessee if the federal action does or attempts to:
    (1) Infringe on, ban, regulate, or restrict state government, local government or civilian ownership, transfer, possession or manufacture of a firearm, a firearm accessory or ammunition in this state;
    (2) Require any state government, local government or civilian owned firearm, firearm accessory, or ammunition in this state to be registered or tracked in any manner; or
    (3) Impose federal taxes, fees or any other charges on any state government, local government or civilian owned firearm, firearm accessory, or ammunition that are payable to any government entity.
    (c) No public official, employee, or agent of this state or any of its political subdivisions shall:
    (1) Act to impose, collect, enforce, or effectuate any penalty in this state that violates the public policy set forth in this section; or
    (2) Cooperate with or assist with the enforcement of federal action prohibited by this chapter.

    Attorney General Cooper wants the legislature and the People of the Tennessee to believe that the following federal acts and constitutional and therefore supreme: (i) a ban on firearms; (ii) tracking of ammunition; (iii) federal taxes on firearms and their accessories;....

    Where exactly in the Constitution did the states delegate the power to regulate firearms? It doesn't. What the States did demand, on the other hand, was the Second Amendment, which states that: "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."

    Some argue that the federal government has some regulatory authority under the Commerce Clause, but that argument would be wrong. Again, we have the Second Amendment (and in fact, the Bill of Rights in general). The Preamble to the Bill of Rights states the intention of the States in adopting them: "The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution." As we all know, the States refused to ratify the US Constitution until a Bill of Rights, proposed by the States themselves, was added. So we see that the Bill of Rights, and in this case the Second Amendment, puts further restrictions on the federal government. These "declaratory and restrictive clauses" further restrain the government in the exercise of their delegated powers. As an example, Congress was delegated the power to regulate interstate Commerce ("to make regular"). After the Bill of Rights was added, the government was prohibited from using the Commerce power to infringe on the right of the people to have and bear arms.

    The Second Amendment states specifically and succinctly - "the right of the people to have and bear arms shall not (must not) be infringed." There simply is no wiggle room. The federal government, therefore, has no authority to regulate in this area and thus, the federal acts mentioned above are not constitutional.

    Does the Federal Judiciary Have Exclusive Power to Make Determinations of Constitutionality? --

    The second question to ask is which branch/tribunal/entity has the exclusive power to make the determination of constitutionality. The Supreme Court, in Marbury v. Madison (1803) has delegated that power to itself. It was not delegated to the federal courts in the US Constitution. Nowhere in Article III is the Supreme Court given "exclusive" jurisdiction. Alexander Hamilton wrote about the weight to be afforded the federal judiciary in Federalist No. 78:

    "Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

    If there should happen to be an irreconcilable variance between the two (the legislative and the judicial branches), that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental."

    Under the contractual nature of the Constitution (ie, the States negotiated the terms of the Constitution and were its signers, thus agreeing to be bound by its terms including the surrender of some of their sovereign power which is the necessary "detriment" or "consideration" which contract law uses to find a valid contract), the states are the legitimate parties and are therefore in the legal position to explain the terms under which they signed. In other words, the States are in the proper position to define the extent of the powers that they delegated to the federal government. The government itself is not a party to the contact and in fact, is its creation. And as the plain words of the Constitution express and the Federalist Papers explain, the right to be the exclusive interpreter of the Constitution was not delegated to the Supreme Court (or the federal courts in general).

    Mr. Robert Cooper, the Tennessee AG, mentions the possibility that the federal acts might be unconstitutional. At the end of the brief he filed, Cooper wrote: "While the bills themselves declare that certain federal firearms regulations are unconstitutional, that determination rests with the federal judiciary and not a state legislature." He rests his assertion on the Marbury v. Madison case, which was mentioned above. But he misconstrued Chief Justice Marshall's ruling. Chief Justice Marshall merely asserted in that case that the Supreme Court CAN, in fact, nullify an act of Congress by declaring it unconstitutional. But nowhere does he assert that the Court has exclusive authority to rule on constitutionality. The discussion of this topic is addressed below:

    "The people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric had been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent. This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments. The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the Constitution is written. The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation.

    The Constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law: if the latter part be true, then written constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable. Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.

    The particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the Constitution is void; and that courts, as well as other departments, are bound by that instrument."

    The Marbury v. Madison case sent up a red flag to Thomas Jefferson who was perhaps our most important and prolific Founding Father. In reaction to Chief Justice Marshall's opinion in Marbury, Jefferson grew terribly suspicious of the Supreme Court and warned that judicial review would lead to despotism. He wrote: "The germ of dissolution of our federal government is in the constitution of the federal judiciary: an irresponsible body, working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction until all shall be usurped from the States, and the government of all be consolidated into one. To this I am opposed; because, when all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the centre of all it will render powerless the checks provided of one government on another and will become as venal and oppressive as the government from which we separated."

    Attorney General Cooper also cited Cooper v. Aaron, a Supreme Court case from 1958 which held that state government officials are bound to comply with Supreme Court rulings and court orders based upon the Supreme Court's interpretation of the Constitution. This case addressed the remnants of the Jim Crow South and Arkansas' refusal to enforce the desegregation mandate of Brown v. Board of Education (Cases I and II, 1953 and 1954, respectively). Cooper referenced Cooper v. Aaron to assert the supremacy of the federal judiciary and to affirm that its rulings cannot be challenged by any state.

    Again, Cooper v. Aaron rests on a fallacious or bastardized interpretation of Marbury. Such a notion obliterates the notion of a constitutional system and makes the Supreme Court the sovereign. I shouldn't even have to point out the absurdity of the Court making itself supreme.

    Edwin Meese, Attorney General under President Ronald Reagan, said this about the Cooper decision: "The logic of Cooper v. Aaron is at war with the Constitution, at war with the meaning of the rule of law." We need look no farther than the Dred Scott case (1857). The Dred Scott decision not only denied even free blacks citizenship but went on to declare all those of African descent to be inferior and suitable only to serve others. To see the inherent flaw in this idea of judicial supremacy would be to accept that the Dred Scott decision was the legitimate law of the land. Abraham Lincoln would not accept it. In response to the ruling, he said: "If the government, upon vital questions affecting the whole of the people is to be irrevocably fixed by decisions of the Supreme Court, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that imminent tribunal."

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