Federal Supremacy v. State Sovereignty in firearms law

by Brian Greene, Utah State Representative

In Utah, I have introduced a bill for the 2013 Legislative session entitled the “State Supremacy Firearms Act.” It was released today as House Bill 114 (HB114)(click here).  The bill is intended to serve as a declaration of state supremacy over the regulation of firearm activities occurring exclusively within the boundaries of Utah, and to put the Federal Government on notice that enforcement of any conflicting federal laws will not be allowed in Utah. Although the response to my bill has been overwhelmingly positive, there have been some critics. The most common argument I have encountered is based upon a misguided reliance on Article VI, Clause 2 of the Constitution—known as the “Supremacy Clause.” Blanket statements such as “federal law always trumps state law,” and “you’re wasting your time because the law is unconstitutional under the Supremacy Clause,” are typical negative reactions to my bill.

Many who favor more gun control and who support a dominant federal government actually believe that if Congress passes a law, or if the President makes an executive order, it is automatically the supreme law of the land. They love to point to the part of the Supremacy Clause that mandates that states must follow federal law when a conflict arises between federal law and either the state constitution or state law. Whether out of ignorance or convenience, they fail to look at the Supremacy Clause in its proper context—that which establishes the U.S. Constitution, and the Laws of the United States which shall be made in pursuance thereof, and U.S. Treaties as “the supreme law of the land.”

Hence, the Supremacy Clause only applies if an act of the Federal Government is in pursuit of its constitutionally authorized powers. In other words, Federal laws are valid and are supreme, only to the extent that those laws were adopted in pursuance of—that is, consistent with—the Constitution.

To read the Supremacy Clause as big government proponents would have you—that ALL FEDERAL LAWS ARE SUPREME—would render the remainder of the Constitution meaningless. Why would there be a need for anything other than a Supremacy Clause?  Why would the Constitution’s Framers have deliberated throughout the summer of 1787 over the other 4,500 words in the Constitution if their intent was to make the Federal Government supreme in all areas it unilaterally decided to act?

The reality is that we have a Constitution that delegates specific enumerated powers to the Federal Government—with the expectation that the Federal Government is not to act beyond those powers. In addition, we have 50 state constitutions that govern in the areas not delegated to the Federal Government. Together, the Constitution of the United States and the Constitutions of each of the fifty states contemplate that each state government will represent and remain accountable to its own citizens.  Because the Federal Government is one of enumerated and limited powers, it must show that a constitutional grant of power authorizes each of its actions.

But the opposite applies to the states—absent a Constitutional restriction on the states, state governments do not need constitutional authorization to act, specifically because it was the intent of the Framers that the powers which “in the ordinary course of affairs, concern the lives, liberties, and properties of the people” were to remain the jurisdiction of governments more local and more accountable to the people. Therefore, the general power of governing the health, safety and welfare of the people, generally referred to as the “police power,” was reserved to the states and not delegated to the Federal Government. National Federation of Independent Business v. Sebelius, U.S. Supreme Court (2012) (aka the Obamacare decision).

James Madison explained the nature of our dual sovereignty structure in Federalist No. 39: “the local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority than the general authority is subject to them, within its own sphere.” This separation of the two spheres is one of the Constitution’s structural protections of liberty. “Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.” Printz v. United States U.S. Supreme Court (1997).

The right of the people of Utah to keep and bear arms is not only a matter of public health and safety, subject to the exclusive police power of the State; but, interference with this right by the Federal Government is expressly prohibited by the Second Amendment to the Constitution which reads as follows: “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.” Additionally, Article 1 Section 6 of the Utah State Constitution declares that “The individual right of the people to keep and bear arms for security and defense of self, family, others, property, or the state, as well as for other lawful purposes shall not be infringed . . ,“ and reserves to the State Legislature the exclusive authority of defining the lawful use of arms.

Any argument that the current gun control agenda coming out of our nation’s capitol is in pursuit of constitutionally authorized powers is simply unsupportable in the face of the of the 2nd Amendment’s prohibition against infringement, the 10th Amendment’s reservation to the states and their people of all powers not granted to the Federal Government elsewhere in the Constitution, and the protection of the right to keep and bear arms found in Utah’s Constitution. To conclude that the anticipated gun control measures being considered by the Federal Government will be entitled to supremacy status via the Supremacy Clause would require a blatant and intentional disregard of the abundant evidence to the contrary.

Those of us who have the privilege of serving our fellow citizens are duty bound to preserve, protect and defend the fundamental rights of those who elected us. The bill I have proposed is simply a reminder and a warning that Utah will neither violate nor ignore fundamental constitutional principles because of either a perceived or real crisis. In fact, it is in such times of crisis that “the Constitution protects us from our own best intentions: It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.” New York v. United States, U.S. Supreme Court (1992).