Friday, January 25, 2013

More on the Williams-Horwitz-Tatum Supremacy Clause/Nullification debate

This is the fifth in a series of post on this topic. To see the previous post, follow this link, which will then link to the other post. Rod
by Gene Wisdom
Gene Wisdom
I find myself disagreeing here with my friend, Tracy Tarum, on an issue dear to both of us: our Second Amendment right to keep and bear arms.  While I agree with most of what Mr. Horwitz argued in response to Mr. Tarum, I hope to address this from a more originalist standpoint and rely on the Framers and their sources rather than statutory or case law.  Let me start out in agreement with Rep. Carr that the Second Amendment is not meant to protect hunters.  It was meant to ensure the security of the citizenry from assault and tyranny.  Elbridge Gerry in the First Congress debating what became the Second Amendment asked:
“What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty. Now, it must be evident, that, under this provision, together with their other powers, Congress could take such measures with respect to a militia, as to make a standing army necessary. Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins….”
But is that right absolute?  William Blackstone didn’t think so.  In his Commentaries on the Laws of England, published in 1776 and very influential and heavily read in our early history by our Founders, he wrote
“The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defense, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute I W. & M. st. 2. c. 2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.” (emphasis added)
My basic point here is that we are far from a position where our laws are “insufficient to restrain” tyranny. 
Now, do I defend the federal government’s right to pass legislation contemplated in Tennessee HouseBill 42?  That bill is designed to prohibit federal enforcement of “[a]ny federal law, statute, rule, regulation, or executive order implemented or executed on or after January 1, 2013” which “attempts to: (1) Ban or restrict ownership of a semi automatic firearm, firearm accessory, or ammunition; or (2) Require any firearm, firearm accessory, or ammunition to be registered in any manner.”  If such legislation indeed were aimed at semi-automatic firearms I believe it would be unconstitional (a) for vagueness and (b) as a general restriction of a fundamental right.  Semi-automatic weapons includes virtually all handguns.  I believe such federal legislation would be patently unconstitutional. 
This bill, however, is the wrong way to deal with it.  First of all, the bill itself has problems with its language.  It targets legislation passed only after January 1, 2013.  What if such laws are identical with previous laws, such as the previous assault weapons ban?  What if an executive order references existing law and prescribes rules for federal agency enforcement?  What if such law expands background checks to provide further protections against possession by those insane or mentally unfit?  Such checks would surely, on the face of them, “restrict” ownership or possession.  Paragraph (b) of the bill would prohibit any firearm dealer in the state from attempting to enforce such restriction no matter how reasonable or consistent with existing law. 
Mr. Tarum, in his response, accuses Mr. Horwitz, incorrectly, of “not once” referring to original sources when the truth is plainly otherwise.  Horwitz referred to the history of the Kentucky (Thomas Jefferson) and Virginia (James Madison) Resolutions reminding us that the more radical Kentucky Resolutions were not only ignored by the other states but repudiated by some and that this contrary view has remained accepted throughout our history.  Additionally, Horwitz pointed to the Federalist Papers, including Number 78, in which Alexander Hamilton put forward the doctrine of judicial review.  Though Tarum may not value Hamilton’s influence (I’m not a big fan of Hamilton myself) he is certainly to be counted among the Framers of the Constitution. 
We have been through worse, even in our Founding.  John Adams’ Sedition Act, passed by a Federalist Congress, directly attacked the First Amendment, making it illegal to criticize the President.  Journalists (and other citizens, if I recall correctly) were imprisoned.  The discussion has been around the right of gun ownership to protect other fundamental rights.  Well, surely, free speech is to be counted highly among those “other rights”.  It came under attack by the federal government and those responsible were repudiated.  Adams was turned out of office as were the Federalist majorities in both houses. 
Our Constitution provides the means to overturn attacks on our rights to gun ownership.  This remains available through: (1) overturning such federal law, rule, regulation, or executive order through further laws passed by a still-elected Congress; (2) “throwing the bums out” as the voters did to Adams and company; and (3) appeal to the federal courts.  (Another avenue, by the way, used to address the abusive Sedition Act was President Jefferson (who defeated Adams)’s pardon of those convicted under it.)  Though Tracy is dismissive of judicial review, it remains a means of overturning unconstitutional legislation.  
 While I believe that judicial review is a valid power of the Supreme Court, both under the terms of the Constitution (“cases arising under the Constitution”) and, as noted, as explained by Hamilton, I have not always agreed with its exercise.  I could cite a long list of cases where I believe the Court has been grievously wrong, beginning of course with Dred Scott, and Plessy v. Ferguson’s “separate but equal” but through to the present day with such decisions as Everson v. Board of Education’s “wall of separation” and more recent cases such as Roe v. Wade (and much of its progeny) and Lawrence v. Texas’s finding of a constitutional right to homosexual sodomy.  Just for starters.  But it’s here and it is available and, in fact, the Supreme Court has done pretty well by gun rights in its recent decisions in McDonald v. City of Chicago and D.C. v. Heller.  Neither one perfect but both very well grounded. 
I would argue that a fourth possible method of resistance exists: impeachment of the President for the “high crime and misdemeanor” of infringing on fundamental rights.  While I don’t believe that impeachment should be lightly considered or become a political tool, as I think it arguably was used against Bill Clinton, James Madison argued that it should be available as a protection against “negligence or perfidy of the Chief Magistrate.”    
Those means do not include state or local police officers arresting federal law enforcement officers.  I agree with the motivations behind the bill—protect our fundamental rights, limit the national government to its enumerated powers, preserve the states police powers under the Tenth Amendment.  And as Tracy well knows, I’m certainly no fan of this President or Administration.  Barack Obama’s agenda is one of socialism, of making a mockery of Constitutional limitations, of attacking the family, and of weakening this country and its military perhaps irreparably.  The program he outlined in his inaugural address was described even by some in the liberal mainstream media as to their Left.  That’s saying a lot. 
But as Rod put it so well in his essay this is not best dealt with by having Barney arresting federal agents.  That is a recipe for chaos.  First of all, as Mr. Horwitz points out, it is rightly against federal law, the Supremacy Clause, and years of our history.  Not even George Wallace in his stand in the schoolhouse door sought to arrest the federal officers whom he confronted.  He moved aside after his speech.  Secondly, it invites federal agents seeking federal troops to put down what would essentially be a state-led  insurrection.  Our Constitution was designed to protect liberty and preserve order.  HB 42’s solution is an attack on that Constitutional order when other peaceful, orderly, available and prescribed methods for resisting federal encroachment exist.
In concluding, I can’t ignore the repeated cheap shots and insults by Mr. Tarum against his opponent.  He justified it by the “well, he did it” defense, arguing that his comments were comparable to Mr. Horwitz’s against Glen Hughes and Tami Kilmarx.  On the contrary, Horwitz’s references to these two weren’t snide, belittling remarks.  Tracy, you’re better than that.

 Gene Wisdom is an Alabama native but has lived in the Nashville area since 2007. He, his wife Vicki, and their dog Savannah live near Nolensville.  Gene is a conservative activist and leads the Conservative Fusion Book Club.

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