by Hal Rounds — February 24, 2013 –
The problem addressed by SB0250/HB0248 is the surging necessity to reaffirm the distinct separation of powers between the federal government and the states as provided in the Constitution. This system of power distribution is called “federalism.” It provides that the federal government, created by the Constitution, was endowed with only certain powers, and all other powers remained in the states, or the People. This separation was designed to make access to and control of our governments as direct as the necessities of governing would allow.
The purpose of this federalist plan was to protect the People against the natural human desire to accumulate power and to dominate one’s fellow citizens. Such power concentration deprives those who submit to it of their Liberties, and directly conflicts with the expressed reason for the Constitution, which was “to secure the blessings of Liberty to ourselves and our posterity.” Being the reason for the Constitution, the preservation of our liberties is also the only reason justifying the continued existence of the federal government itself.
When the federal government reached that inevitable day when the lust for power overcame the acceptance of duty, the states’ purpose for existing, with all their non-surrendered powers, was to stand between the overreaching federal government and their citizens.
That overreaching of the federal government has come in our time. The duty of the states to interpose their powers and protect the liberties and lives of their citizens has, therefore, also arrived.
SB0250/HB0248 is the first mechanism to address the duty of the State of Tennessee to fulfill the purpose for which its existence was preserved in the Constitutional scheme.
The final step in the overreaching of an out-of-control government is a plan to remove the power among its citizens to resist final domination. That was the act that triggered the American Revolution on April 19, 1775. It is the act that is being formulated today in Washington, D.C. And it is the first act that the Tennessee Assembly must address in its duty to defend its citizens.
SB0250/HB0248 addresses that act. It has four basic elements.
The first element is to define, in the context of the right of the citizens to keep and bear arms, those potential actions that do not fall within the authority of the federal government. (Sections 1 – 5(b))
The second element of the bill is to prohibit any state agency, budget or personnel from being used to implement or assist the federal government in implementing any actions, whether by Congressional legislation or executive order, that direct the state to do the work of enforcing federal laws. Again, this prohibition of state action only addresses certain potential federal actions relating to the citizens’ rights to keep and bear arms. (Section 5 (c) & 6)
The third element is to prohibit any federal agency or officer from attempting to enforce in Tennessee laws deemed outside the authority delegated to the federal government with regard to the keeping and bearing of arms by the citizens. (Section 6)
The fourth element is the heart of the bill. It provides that the State of Tennessee will defend any citizen of Tennessee whose rights regarding the keeping and bearing of arms, as defined in Section 1 – 5(b), are infringed.
This fourth element is the one that must be explained first, so that the purposes of the others can be better understood.
When a government agent begins to enforce an unconstitutional law against a citizen; the citizen is immediately overwhelmed by the governmental resources arrayed against him. Rarely does this wrongful destruction of his liberties raise a public outcry, or inspire some beneficial organization to come to his defense. He loses in a hopeless and crushing imbalance of power.
Even if his state were to recognize that his plight was unjust, they would have no standing to oppose the wrongful act as a party, and the representation of a citizen in his private peril is not a typical state service.
That is where the fourth element of SB0250/HB0248 literally comes to the rescue. It is the legal cavalry that saves the surrounded citizen. Because, by attaching a legal prohibition and consequence to a perceived wrongful federal action, the state has become a party in opposition to the contested action.
This fundamentally changes the relations between abused citizens and overreaching federal agencies. Now a federal officer has to consider the resources of the entire state, not of the hapless individual, when he decides what laws to enforce and how. And his consideration will include the deep motivation of actual consequences to him personally, not just whether his agency will spend more or less taxpayer dollars in covering for his performance.
It is exactly because the prohibitions of the new Tennessee statute will lead to confrontations, that gives the bill its value.
The fourth element of the SB0250/HB0248 clearly raises questions regarding federalism, and of how conflicts must be resolved when it is possible that federal agents are exercising forbidden powers. But these are questions that must be asked and answered, not abandoned in a convulsion of timidity.
When a federal agent and the law enforcement agencies of Tennessee find conflicting assignments, the state must stand in defense of its perceived duties. That this results in confrontation and litigation is not a result that should scare away any state officer. That is the process by which the borders of power are properly defined.
This is the critical function of SB0250/HB0248.
One function of the Supreme Court of the United States is to determine the constitutionality of laws of the states, if they conflict with laws promulgated by Congress. (This is usually seen as the “final” authority regarding constitutionality, but there is actually another level, as explained below.)
The Constitution, however, limits the power of the Supreme Court in addressing constitutional questions. The Supreme Court has jurisdiction only in “controversies.” It cannot reach out to grab some law – state or federal – and declare that law valid or not. There has to be a confrontation, generally based on some individual or organization violating the law, and then contesting it in the original court, the appellate court, and – only then – in the Supreme Court. Until such challenges and litigation are accomplished, no one can say what the Supreme Court will rule. SB0250/HB0248 exists exactly to create such challenges, and thus clarify the line between state and federal authority.
When someone attempts to enforce a firearm-related federal law or regulation that appears to violate the limitations defined in SB0250/HB0248, this bill requires the law enforcement resources of the state to interpose by stopping the enforcement action and prosecuting the person(s) attempting to enforce it.
SECTION 6. Tennessee Code Annotated, Title 4, Chapter 54, is amended by adding the following language as a new section:
(a) It is an offense for any person to knowingly enforce or attempt to enforce any federal action prohibited by this chapter relating to a state government, local government or civilian owned firearm, firearm accessory or ammunition.
(b) Any person who violates this section commits a Class B felony.
“Enforce” means to accomplish obedience by use of force or threat of force. If the object accomplished by this force or threat is not Constitutionally authorized, then all that remains is the force or threat, and the fact that there is no legal excuse for it.
This reduces the forceful action to a criminal act – trespass, battery, assault, stalking, etc. If a private citizen commits any of these acts, without some legal justification, it is a crime that justifies prosecution. When an officer or agent of any level of government commits any of these acts, without legal authority, he stands in the same position – he has committed a crime and is rightly subject to prosecution and punishment. Certain levels of each of these crimes are currently established as felonies. There is no reason to reduce this degree of severity on the excuse that the agent was attempting to use the illegal force to accomplish enforcement of a law or regulation that itself was not Constitutionally authorized.
If the law or regulation that was being enforced by the officer or agent is determined, in the course of prosecuting the officer or agent, to be Constitutional, then the accused officer will be acquitted. There is no consequence, outside of the trial itself, that harms the officer who is performing legal duties. That is the plight of every falsely accused person, and is an accepted consequence of having laws. There is, again, no reason to insulate officers from the risk of mistaken prosecution – this risk imperils every innocent citizen, and officers deserve no special treatment.
The provision in SB0250 that defines the offenses listed as felonies is thus legally appropriate.
Note further that this prohibition is not addressed solely to federal officers and their encroachments. State officers – and even agents of the United Nations, for instance – fall under the class of “any person.” Any challenge against the constitutionality of this bill will have to address that uniformity of application. The federal government is not singled out. Note further that the enforcement provisions of SB0250/HB0248 do not spring into action until an act of some government person actually occurs. This act does not “nullify” merely upon the declaration of some federal government law or regulation.
Many questions have been raised regarding the elements of this bill. This is sensible, because any potential discord among the separate, quasi-sovereign levels of government which the American People have created must be inspected, understood, and resolved for the nation and its parts to function peacefully and constructively.
With respect to the first element of SB0250/HB0248, the definition of what powers lie within the number granted to the federal government and which are retained by the states gives a starting point for resolving that critical federal question. Since the list challenges powers that the opposing government might be jealous to defend or acquire, there will inevitably be challenges and litigation. We must not avoid these challenges, because the People and their public servants alike need to see just where their legislators, executives, and courts think the various lines should be drawn. We need to bring the questions, as they confront us, through the legal process of resolution that usually ends in the Supreme Court.
It is often claimed, and usually accepted, that the United States Supreme Court is the final arbiter of these questions. That is actually only true in the context of the defined structure of the Constitution. The defined distribution of power in the Constitution, however, goes farther. As long as the decisions of the Supreme Court do not sufficiently offend the People, the People will acquiesce in those decisions, and their legal consequences. But there are two levels of popular power that can overturn any Supreme Court action, if the people feel that is necessary.
The first is a mild chastisement – impeachment. The justices are not immune from impeachment – it is only a matter of how many citizens press this action through their representatives, or how many representatives have the Constitutional knowledge and sense of duty to file articles of impeachment when Supreme Court justices’ opinions stray from the Constitution.
The consequence of impeachment is to instruct unimpeached survivors and successors regarding what the people will tolerate. This forceful instruction should steer future court decisions.
The second is a far harsher exercise of power. Those who are governed may withdraw their consent to be governed at any time. Any resistance by those officials or agencies from whom consent has been withdrawn can result in violence. However unfortunate that may be, it is exactly the process agreed upon when the various states ratified the Constitution. They were assured, as the writers of the Federalist Papers persuaded them, that
“… 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. … Plans of resistance would be concerted. One spirit would animate and conduct the whole. … and unless the projected innovations should be voluntarily renounced, [an] appeal to a trial of force would be made …”
“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.” Federalist 46
Never should any People resort to such action for trivial reasons. As the Declaration of Independence informs us:
“Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”
This, then, and not the Supreme Court, is the final authority on what is Constitutional and what is not. It is to be hoped that the Supreme Court stays close enough to protecting our liberties that this truly final authority is free to lie quietly dormant.
Several opponents of this bill have predicted that the Supreme Court will find the entire bill unconstitutional on various grounds. These opponents demand that the bill therefore be defeated in the Assembly – which is nothing less than a pre-emptive surrender of the question.
But, since the question is “are there any limits to federal power?” the question must be asked, or the entire Constitutional plan of federalism must be surrendered.
That would spell the end of the Republic. There is no less dramatic way to express this consequence. An unlimited, unchallenged federal Leviathan is exactly the end our founders foresaw and tried to leave us the tools to prevent. Surrender would be the end of mankind’s struggle to keep governance under the control of a free people.
If, however, the courage of our Assembly suffices to enact these definitions, certain actions will necessarily follow at the state level, as set out in the next elements of the bill.
The actions of the second element of SB0250/HB0248 direct only the actions of state offices and personnel. Tennessee agencies must not enforce federal laws or regulations that obstruct the firearms rights defined in this bill.
There is no federal power in this realm. As long as the state does not act in conflict with a legitimate federal law or regulation, the Constitution does not grant any power to the federal government to direct what state officers must do. There is absolutely no Constitutional authority for the federal government to direct the actions of any state officer, agency or branch of government. Even the touted “Supremacy Clause” is irrelevant (see below.) It is not constitutionally permissible for the federal government to subjugate the apparatus of a state to its policies. Should the entire remainder of this bill be found unconstitutional, this section cannot be so treated, and this section, which forbids the state to become a puppet of federal demands, by itself justifies passage of the bill.
The government of Tennessee has the duty of defending our rights, and defending their own separate, Constitutionally preserved, powers. The People of Tennessee assigned to our representatives their duties, and no representative has the right to abdicate a power assigned to him by his constituents. First among those duties, and the only one sworn to, is to defend the Constitution – and that includes defending it against federal encroachments against state powers.
The analysis of SB0250/HB0248 would be incomplete without mentioning three further questions that were raised in the Tennessee Senate Judiciary Committee hearing on this bill on February 19.
First was the question asked by Committee Chairman Senator Brian Kelsey regarding the supremacy implications of the ratification of the 10th Amendment having come after ratification of the original structure of the Constitution.
It only takes a quick reconsideration to affirm that an amendment is designed precisely to supersede what came before it. In the case of the Bill of Rights, this power to supersede actually allowed the Constitution to become the law of the land.
The ratification of the Constitution was not a smooth process. After four states had ratified it enthusiastically, the remaining states balked. Massachusetts specifically rejected it on the grounds that there was too great a concentration of power in the proposed federal government, and no bill of rights had been incorporated to restrain those feared federal powers. Only after the members of the ratifying convention agreed that a bill of rights would, immediately once Congress met for its first session, be submitted to the states for ratification, did the Massachusetts convention submit their ratification, and that on a split vote.
The following states shared this reluctance. And there were two that refused to ratify at all, staying entirely out of the Union, until the Bill of Rights as we know it had been drafted. One of those states was North Carolina. And, at that time, the western part of North Carolina extended to the Mississippi. In other words, Tennessee, which was made out of North Carolina, refused to accept the powers listed in the Constitution until the Bill of Rights – and specifically the 10th Amendment – was there to protect our citizens and our state’s powers.
There can be no more forceful endorsement of the 10th Amendment, and of the Sovereign powers – and duties – of a state than this history that applies specifically to Tennessee.
Thus the 10th Amendment takes precedence over the Supremacy Clause, should there ever be a conflict. The Bill of Rights is exactly an addition of “further declaratory and restrictive clauses,” that were necessary “in order to prevent misconstruction or abuse of [the Constitution’s] powers,” that was necessary because the original form of the Constitution – including the “Supremacy Clause” – was, standing unrestrained, unacceptable to those considering it for ratification.
For a fuller analysis of this aspect of the Supremacy Clause, please refer to the Tenth Amendment Center’s critique of the Committee Session of February 19, which has attracted national attention (attached.)
The second discussion touched in that Committee hearing on this bill that was highly erroneous was the reference to the history of “nullification,” and its supposed futility and danger.
Critiques of Constitutional policy and the process of nullifying federal laws have been scattered though our history. They are summarized best in the analysis offered by Publius Huldah, published in The American Clarion on January 28th. (http://www.americanclarion.com/16778/2013/01/28/nullification-deniers-this-is-what-james-madison-really-said/)
Essentially, the claim that the “Nullification Crisis of 1832” was the sole, or last, significant attempt to nullify a federal law, and that it was a failure, is filled with errors. Among these are the assertion that South Carolina’s effort resulted in failure and submission to the power – and supremacy – of the federal government. In fact, the nullification South Carolina attempted was not constitutional because enacting the tariff the state was opposing was an enumerated federal power. Nevertheless, the result of the state’s firm commitment to nullifying that tariff resulted in Congress amending the tariff so as to shrink its objectionable nature. In other words, by standing firmly, South Carolina did, indeed, reverse the oppressive aspects of an admittedly constitutional act of Congress.
But that was not actually “nullification” in the properly defined sense. It was “interposition,” where the state stands between the federal government and the citizen, to protect the interests of the citizen.
Nullification is, technically, a precise term, and is fully compliant with the Constitution. As Publius Huldah explains,
“… two conditions …must be present before nullification is proper and possible. These conditions are important – …
• The act of the federal government must be unconstitutional – usually a usurpation of a power not delegated to the federal government in the Constitution; and
• The act must be something The States or The People can “nullify” – i.e., refuse to obey: the act must order them to do something or not do something.”
Nullification, as defined above, has been firmly supported, and recently, by the United States Supreme Court:
“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. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and 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)
SB0250/HB0248 only “nullifies” a federal act in Section 5(c), where it directs state officials to do nothing in support of a listed federal act:
“(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.”
This “nullification” conforms exactly to the Printz ruling.
The bill “interposes,” rather than nullifies, to protect the citizens in Sections 6 and 7, where it provides for enforcement against federal actions, and to defend citizens against them in our courts. This is not an unconstitutional defiance of constitutional laws, but a legal challenge to their constitutionality, with a legal consequence to the offender if their action proves to have been unconstitutional in itself. It is an essential mechanism for determining what, using our court system, is indeed constitutional.
The final question raised in the Committee Hearing that revealed some misunderstanding was the questioning of the supposed “vagueness” of the bill.
There is no vagueness beyond the recognition that future acts of Congress may take various forms. Once any of those acts – or current regulations – are claimed to violate the prohibitions of SB0250/HB0248, there is only the comparison of the act with the prohibition, and whether the act has constitutional validity. It takes an act to invoke this bill’s provisions, and the acts are specific – enforcement of a federal act requiring registration, banning, or regulating a firearm or other listed item or transaction within Tennessee.
When the People of Tennessee removed the bulk of those legislators who were Democrats, and placed Republicans in their places, it was not the intent of the people to merely switch one set of politicians with another. It was a rejection of how power was being used. The Republicans were being entrusted with changing how governing was being done in Tennessee.
The changes sought by the voters of Tennessee have not been forthcoming. The Constitution that was threatened then has not been defended by the Republican replacements. Not yet.
SB0250/HB0248 offers the hope that the essential change of direction in Tennessee, away from smothering federal intrusions, is finally accomplished.