Chairman Blair, Vice Chair Anielski, Ranking Member Clyde and Members of the House State and Local Government Committee. Thank you for the opportunity to testify in support of House Bill 99. My name is Scott Landreth and I represent the Ohio Chapter of the Tenth Amendment Center.
House Bill 99 is a critical, overdue step towards protecting the rights of Ohioans from federal overreach.
- Prohibits any agency and its employees and agents from seizing or authorizing the seizure of any firearm from a person lawfully in possession or control of the firearm, except when a law enforcement officer acting in the lawful discharge of the officer’s duties (1) reasonably believes the immediate seizure of the firearm is necessary for the safety of the officer or another individual, or (2) seizes the firearm to preserve it as evidence, or for the investigation, of a criminal offense.
- It prohibits state and federal law enforcement officers, international agents, or other persons from enforcing or attempting to enforce a firearm registration requirement or firearm ban imposed by law, unless the requirement or ban is in effect before the bill’s effective date, and imposes a first degree felony for violation of the prohibition.
- Prohibits a political subdivision from enacting or adopting an ordinance, a resolution, or a rule that requires a person to register a firearm or establishes a firearm registry.
Quite simply, the bill says that no agency at any level of government will be permitted to infringe on Ohioans natural right to own firearms.
As simple as this statement is, the political reality of today is that states adopting such legislation encounter massive rhetorical resistance and criticism simply because these sentiments run counter to the prevailing political atmosphere, large-scale centralization.
The primary criticism that will always be leveled against this kind of legislation is a charge that it is unconstitutional. So, is this bill legal?
The Second Amendment to the United States Constitution states, “the right of the people to keep and bear arms shall not be infringed.” This prohibits the federal government from encroaching on this right.
Article 1, Section 4 of the Ohio Constitution states, “The people have the right to bear arms for their defense and security.” This prohibits any government within the state of Ohio from encroaching on this right.
The existence of these two laws unequivocally protects the right of Ohioans to own firearms. HB99 is merely a reaffirmation of Ohio’s commitment to the law that binds both the federal and state governments. This reaffirmation, simple though it may be, is critical today since many politicians at the federal level consistently ignore constitutional restrictions on their own power. Over the last several months, they have ramped up the rhetoric regarding firearms restrictions, providing us with a clear indication of their intention to ignore constitutional limitations in this arena as well.
Some of these federal politicians, in order to escape the bindings of the Constitution may claim that the Second Amendment actually allows for some federal regulation of firearms. This position is patently false.
The main reason why it is false is that, as important as the Second Amendment restriction on federal power is, the Tenth Amendment illuminates how truly limited the scope of the federal government is. The Tenth Amendment reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
This means that unless the Constitution explicitly gives the federal government the power to take a specific action or perform a specific function, it clearly, by any rational reading of the Constitution, do not have that power. Not only does the Constitution not give any power to the federal government to restrict the ownership and use of firearms, it explicitly prohibits any such actions. Quite simply, the federal government has no authority in this matter.
Through the Second and the Tenth Amendment, the federal government is doubly prohibited to act in any way that limits the right to keep and bear arms.
But, we all know that the federal government does not always follows it’s own laws. The government in Washington D.C. routinely passes laws that run directly counter to the Constitution. And yet, even when the federal government takes actions that are clearly unconstitutional, many people argue that these actions are entirely valid simply because the federal government passed the law.
In this spirit, some will say that HB99 is unconstitutional because it violates the Constitution’s Supremacy Clause.
Indeed, this is exactly the perspective of the Ohio Legislative Service Commission, which said of HB99:
“It is doubtful whether the General Assembly can ban federal or state law enforcement officers, or international agents, from enforcing or attempting to enforce a federal law requiring firearm registration or banning firearms, if one were enacted by Congress after the bill is enacted. The U.S. Constitution’s Supremacy Clause makes the Constitution, and federal laws validly enacted in pursuance of it, the “supreme law of the land.” Federal laws bind the states, notwithstanding anything in their constitutions or laws. Under U.S. Supreme Court decisions interpreting the Supremacy Clause, acts of state legislatures that interfere with, or are contrary to, laws of Congress, are found invalid.”
The Supremacy Clause to which the Commission’s analysis refers reads: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; …shall be the supreme Law of the Land.”
The Commission focuses on the part of this clause that says that federal laws are the “supreme law of the land.” But, notice those seven words: “which shall be made in pursuance thereof.” What the Constitution actually says is that only constitutional federal laws are imbued with supremacy. But as we have already seen, any laws past, present or future regarding firearms restrictions are obviously unconstitutional, and if they are unconstitutional they are therefore not supreme.
Alexander Hamilton affirmed this interpretation while advocating for the ratification of the Constitution when he said, “The laws of Congress are restricted to a certain sphere, and when they depart from this sphere, they are no longer supreme or binding.”
Some may say that Ohio must wait for the U.S. Supreme Court to tell it what is and is not constitutional, but the state of Ohio does not defer to the Supreme Court in determining which laws are constitutional. Donald Livingston, a professor of philosophy at Emory University, recently testified in South Carolina that to say that the Supreme Court decides what laws are constitutional is tantamount to saying that “our liberties (are) a gift to us from the central government” and not the inalienable rights mentioned in the Declaration of Independence.
But beyond the philosophical problems of this position, there are legal problems as well. There is absolutely nothing within the U.S. Constitution that gives the Supreme Court the ability to be the ultimate determiner of the constitutionality of its own laws. To give this kind of power to any federal branch would have been unthinkable to the founding generation. Indeed, it would have undone the balance between federal and state power that the framers sought to achieve.
When considered in the light of the Constitution’s careful limitation of federal authority, this is a nonsensical position. It would have been logically inconsistent for the Founders to have strictly limited the federal government and then given a branch of that government the final say in determining the extent of its own powers. The federal government’s authority is derived from the powers delegated it by the states, and in a political society the delegating entity retains the authority to judge the extent of the power that it has delegated, and to determine when a violation of the limitations exists.
Thomas Jefferson expounded this in the Kentucky Resolutions of 1798 in which he wrote:
“The government created by (the Constitution) was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party (the people of each state) has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.“
In other words, the state of Ohio can decide if a federal law is unconstitutional. What’s more, the U.S. Supreme Court has recently affirmed the right of states to refuse to enforce federal laws.
- In the 1992 case of New York v. United States, the Court said that Congress could not require states to enact specified waste disposal regulations.
- In the 1997 case of Printz v. United States, the Supreme Court held that the federal government could not command state law enforcement authorities to conduct background checks on prospective handgun purchasers.
- In the 2012 case of National Federation of Independent Business v. Sebelius, the Supreme Court ruled that a significant expansion of Medicaid was not a valid exercise of Congress’s spending power, as it would coerce states to either accept the expansion or risk losing existing Medicaid funding.
In each case, the Supreme Court made it quite clear that the federal government cannot require the states to act, or even coerce them to act through a threat to cut funding. In other words, the federal government cannot compel state agents to support or enforce federal gun laws.
If a federal law is unconstitutional, it is not supreme, and the states have at least a coequal role in determining whether or not a law is constitutional. So, what should a state’s response to unconstitutional laws be? It should be to resist them and to refuse compliance with their enforcement, regardless of what federal politicians, bureaucrats or even judges say.
As foreign a concept this might seem to be, this is not some radical new doctrine that was invented by 21st Century ideologues. It flows from the very structure of the Constitution, which clearly delineates the scope of the federal government’s powers. The Constitution was designed in such a way that, as founding father Roger Sherman said, “when the government of the United States…interferes with the rights of the State governments they will be powerful enough to check it.”
Hamilton elaborated on this point when he said that any “acts of the (federal government) which are not pursuant to its constitutional powers…will be merely acts of usurpation, and will deserve to be treated as such.”
What’s more, this kind of action by the states has a long history, including a proud tradition right here in Ohio.
- In 1819, Ohio imposed a tax on the federally chartered Bank of the United States. The Supreme Court had already ruled that such taxes were unconstitutional in McCulloch v. Maryland. However, despite the Supreme Court’s decision, an agent of the Treasurer of Ohio seized $100,000 from the Bank to satisfy the tax. Ohio’s legislature passed resolutions declaring that it did not accept the result of the McCulloch case and denying that the Supreme Court had the final authority to interpret the Constitution. The Ohio legislature’s resolutions asserted that the states “have an equal right to interpret that Constitution for themselves.”
- In 1857, the Ohio legislature passed An Act to Prevent Kidnapping in response to The Fugitive Slave Act of 1850 – one of the most despicable acts ever passed by Congress. This so-called law denied any person accused of being a runaway slave any semblance of due process. Under the Ohio law, “Forcibly or fraudulently carrying off” a free black person would get you three to eight years of hard labor. Anybody trying to take an escaped slave out of Ohio was subject to the same charges if they failed to go to the proper court and prove “ownership.” Many northern states passed similar laws, which infuriated southern slaveholders and led directly to freedom for many escaped slaves.
HB99, far from being unconstitutional, continues this courageous tradition and recaptures the spirit of the American Revolution in which power was divided and the state governments held the primary role in maintaining constitutional fidelity. Historically and constitutionally speaking, there is nothing within this bill that is at all radical.
HB99 is not only entirely constitutional and legal, it cuts to the very heart of the primary function of this legislative body. Legislators always explain their primary job description as protecting their constituents. But, this means more than merely considering legislation on the key issues of the day. It more fundamentally means protecting Ohio citizens from tyranny.
It is ultimately the responsibility of the Ohio state government to ensure that its citizens are protected from federal overreach. It is Ohio legislators that decide policy for Ohio citizens. If Ohioans desire more or less restrictions on firearms, it is the Ohio state government that should make that decision in accordance with the laws of this state. If Ohio laws are to be changed, it is Ohio legislators that are tasked with changing them.
In matters pertaining to both policy and the preservation of our freedom, it is your responsibility as the the unique representatives of Ohioans to undertake these matters.
HB99 is a vitally important step for the state of Ohio. It is legal, it is measured, it is appropriate and it accomplishes the most fundamental function of this government. The only thing it needs is the support of bold and courageous representatives who are willing to stand up for their own rights, the rights of their state and the rights of the people they represent.
Chairman Blair and members of the committee, thank you once again for giving me the opportunity to testify in support of this important bill. I want to thank the sponsors Rep. Wes Retherford and Rep. Ron Hood, as well as, the sponsor of the companion legislation in the Senate, Sen. Kris Jordan. I respectfully urge you support HB 99.
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