The State Supremacy Firearms Act and the Supremacy Clause
The following is a guest submission from Utah Representative Brian Greene.
It was an honor and a privilege to be asked to address the 3,000 patriots at the Gun Appreciation Day rally at the Utah Capitol this past Saturday. Although the rally lasted much longer than the scheduled hour, the crowd seemed to steadily grow throughout the event, despite the freezing temperature. As I sat and listened to one energetic speaker after the other and felt my extremities gradually succumb to the bitter cold air, my mind kept recalling the words spoken by Charlton Heston, “you can have my gun when you pry it from my cold dead hands.”
When it was finally my turn to speak, we were already long past the expected ending time, so I decided to shorten my speech on the fly. Unfortunately, I left out at least one important concept, which I will try to briefly convey now. Probably the most common argument I have encountered against my State Supremacy Firearms Act is the misguided reliance on Article VI, Clause 2 of the Constitution—known as the “Supremacy Clause.”
Those who favor more gun control and who support a large 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 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.”
The Supremacy Clause only applies if a federal act 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 decided to act?
Those who attended Saturday’s rally know that we have a Constitution that delegates specific enumerated powers to the federal government—with the expectation that the federal government is not to go beyond those powers. In addition, we have 50 state constitutions that govern in those areas not delegated to the federal government. Together, the Constitution of the United States and the Constitutions of each of the 50 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 be 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.
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 Washington is in pursuit of its constitutionally authorized powers is simply unsupportable in the face of the of the Second Amendment’s prohibition against infringement, the Tenth Amendment’s reservation to the states and their people 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 actions of 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. Moreover, 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 will do just that.
5067 total views, 10 today
Sold, sign me up!
Thanks Brian. It’s good to hear a well-spoken elected official who chooses to clearly elaborate the rights he protects. Unfortunately, it’s also quite rare. Keep up the good work.
Great job. We support you
I was very happy to read this. In these times of government threatening to implement whatever laws they choose with a blatant disregard for the people they are supposed to be serving. The current administration needs to recognize the fact that they took an oath to uphold the constitution. They need to be serving our interests and stop trying to rule us. I thank you for your integrity and strength in fighting for the rights that our country’s founders fought for us to have. Thank you sir! God Bless America!
Excellent article! This has answered the very question I had this morning and gives me great pride to know that, at least in Utah there are elected leaders that will not just accept anything the Federal gov would try to push on us. The importance of the 2A should not be underestimated! It is as essential as the other Amendments to preserving our freedom.
Absolutely fantastic! I am really happy to be able to read these things explained so simply.
I agree and thank you for the great explaination
One question this bring up; you stated regarding the health laws “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”.. Does this have any relevance in the “Obama Care” health laws?
Thanks for recognizing the facts and caring about a FREE SOCIETY. An armed society is a polite society. I want to post this around and get support for this bill. Please help get this post so every gun owner in Utah will talk with their law makers and get this pasted!!!!
SALT LAKE CITY — Permits wouldn’t be necessary for most people to carry concealed weapons in Utah if a state lawmaker gets his way.
Rep. John Mathis, R-Vernal, is sponsoring H.B. 76, which allows essentially any law-abiding citizen over the age of 21 in the state to carry a gun, openly or concealed.
Utah would effectively become a “constitutional carry” state if the measure is approved. That term refers to a state where carrying a concealed weapon isn’t restricted by law.
It’s unclear whether the bill can clear the Utah Legislature. Send this around anywhere you can think of so it will gain recognition. It has met a a lot of skepticism. I’m astonished at the number of people that think people need training before they can protect their selves. Yet they drive vehicles to work every day. A felon can have a drivers licence. Anyone that can legally own a weapon in my opinion should be able to carry it how he likes. It will nly make the state a safer place than it is NOW!!
Something else that should be considered is that the bill of rights are amendments to the original contract (the constitution) and thus alter the original meaning. Thus, the second amendment specifically removes arms from federal control with respect to the commerce and supremacy and other clauses.
I too was at the rally (and it was cold)!. Enjoyed you comments both at the rally and here. I’ve stumbled on an excellent site with an enormous amount of info re…2;nd amendment rights, various statistics etc… it’s called “guncite” (http://www.guncite.com).
It’s a very balanced, fact based treasure trove of info. Several articles I found extremely interesting (these are long, very indepth articles that discuss detailed history of legislation, court findings, both local and supreme court, etc). Here’s links to just a few of them…
http://www.guncite.com/journals/haljuris.html
This one discusses the jurisprudence of the 2′nd and fourteenth amendment.
http://lawreview.wustl.edu/inprint/75-3/753-4.html
This is a Washington University Law Quarterly that discusses the potential connection between the restrictiveness of a governments civilian gun policies and it’s potential for abuse of it’s own people. Not a ranting polemic, a very thoughful essay.
http://www.fee.org/the_freeman/detail/the-uplifters-try-it-again/#axzz2JZfoER6C
This one’s great. Written by H. L. Mencken, in 1925 no less, it reads as though it could have published yesterday!
http://guncite.com/journals/okslip.html
This one is a must read…”All the way down the slippery slope: Gun Control in England”. Again, this is no ranting polemic, it’s packed with historical fact and legal info and references and demonstrates a current world example of exactly how claimed “reasonable steps” can, and do, lead to essentially complete confiscation.
Regulating gun sales will be seen to be something the Feds can do because of the enumerated power given them by the commerce clause. Sadly unless the SCOTUS undoes nearly 90 years of commerce clause juris prudence your argument is not a winner. Read Wickard. I think it is one of the worst SCOTUS cases but it is law. We had a chance to get a change in Raich v Gonzalez only several short years ago. However Justice Scalia of all people, wrote an opinion that simply reinforced Wickard. In sum, given current commerce clause juris prudence you argument is a loser and your bill should it ever be challenged would be struck down under the supremacy clause. I may not like that, but that is the way it is. Can you read Wickard and Raich any other way? I’d love to hear it. So unless you are ready to tell the SCOTUS and the feds to pound sand this is nothing more than a message bill. Pass it anyways, its a good message to send. And who knows perhaps if it wouldn’t have been pot at issue in Raich Scalia would have shown some intellectual honesty and we could have seriously had the power of the Federal government reduced back much closer to, but still far to far from, a level the founders envisioned.
I hope you will push to pass constitutional carry. Utah is a leader in sensible gun legislation and it is sad we don’t already have this.
I support constitutional carry. But, I am concerned that most Utahns are not aware of the extremely important legal issues that they would be subject to after being involved in a shooting. I am CCP holder and I believe that the the information provided in these classes in VERY important to the well being of the law abiding citizen with a concealed weapon.
Thank you Brian, its a step in the right direction.
I think most people would be very well served to get additional training, well beyond the very limited information that is provided by CCW class. It would be prudent to get additional training in legalities, weapons manipulation, and tactics. However, what is prudent is not the same as what should be legally required. Furthermore, the information could be made available cheaply to the public. Say a free video of the info covered in a CCW class on a state website. Furthermore, we have simply not seen any kind of compelling problems coming out of states with constitutional carry. Thus why i would like to see a permit system retained so that we can still have reciprocity, etc, I think constitutional carry makes sense to pass. Someone facing real threats that can arise quickly (a stalker, someone seeking revenge, etc) shouldn’t have to wait a month to be able to protect themselves.
Thank you for speaking and thank you for being a voice for us in the legal standings. Even though it was cold it was worth it. I know that most of us would do it again, and plan on bringing more friends/family with us.
I was glad to see that it’s not just my family tradition, but many others to teach their children about being respectful gun owners. I do ask one thing…. if you own a gun and there are females in the family TEACH THEM!!!! I am proud of the stories I’m hearing how women are using the right to bear arms and protect themselves as well as their families.
*places two cents into the bucket.
Thank you for the above article, informative. Having relocated to Utah 18 months ago I am enjoying living in a pro 2A state, as a property owner and registered voter. Having lived in mostly rural western states i am used to living with gun carrying neighbors. I am a ccp hold out and have had several discussions with my parents ( i am over 50 years old) on this issue. Mom is a ccp holder in Colorado and dad was an NRA instructor in Colorado. My argument is why should we have to get a permit for what is a fundamental right. So i have been using open carry, only carrying when i feel i may have a need – usually in the wild for dangerous animal defense. Home defense is another matter for me and i do have a multiple component plan.