On Monday Arizona made a bold move to check unlimited federal power. Arizona Governor Jan Brewer signed the Arizona Firearms Freedom Act (HB 2307) into law, making Arizona the sixth state to pass this type of historic Tenth Amendment legislation.
However, this was hardly Arizona’s first act of defiance against federal overreach. Last year, the Arizona Legislature passed a concurrent resolution known as the Arizona Health Care Freedom Act, which will appear on the ballot this November. If approved by Arizona’s voters, it will amend the state’s constitution and guarantee Arizonans two things:
-That all Arizonans have the right to spend their own money to obtain legal health care services.
-That all Arizonans have the right NOT to participate in any health care system, of any type.
Arizona is also on the verge of passing a bill that would nullify Cap and Trade (SCR 1050), as well as passing another bill that declares “..any incandescent lightbulb manufactured entirely within Arizona and not exported to any other state is not subject to federal regulations.” (HB 2337).
Question: What do all these bills have in common? Answer: They all push back against Congress’ abuse of the “commerce clause”.
In an official statement released yesterday, Governor Brewer issued a stern warning to the federal government when she noted that the Arizona Firearms Freedom Act should:
“..send a clear and convincing message that politicians in Washington should not attempt to get between Arizonans and their constitutional rights.”
Originally introduced and passed in Montana, the Firearms Freedom Act (FFA), declares that any firearms made and retained in-state are beyond the authority of Congress under its constitutional power to regulate commerce among the states. The FFA is primarily a Tenth Amendment challenge to the powers of Congress under the “commerce clause,” with firearms as the object. (source, FirearmsFreedomAct.com)
States that have signed FFA’s into law now include Arizona, Monatana, Tennessee, Utah, Wyoming, and South Dakota. Idaho’s Governor Butch Otter is expected to sign House Bill 589 into law, which will bring the total to seven states. Additionally eighteen other states have introduced nearly identical bills in their state legislatures. These bills have passed through one or more houses in five of those states.
Arizona’s FFA (HB 2307) is about much more than the right to keep and bear arms. The legislative findings contained in the act affirm that our union is a compact between the people of the several states, their state governments, and the federal government of the United States. It also declares that,
“The tenth amendment to the United States constitution guarantees to the states and their people all powers not granted to the federal government elsewhere in the constitution and reserves to the state and people of Arizona certain powers as they were understood at the time that Arizona was admitted to statehood in 1912. The guaranty of those powers is a matter of contract between the state and people of Arizona and the United States as of the time that the compact with the United States was agreed on and adopted by Arizona and the United States in 1912.”
Furthermore, the act explicitly denies that the federal government has any authority whatsoever to regulate commerce which takes place exclusively inside Arizona’s borders (intrastate commerce), which pertains to the manufacture of firearms, firearms accessories and ammunition. This assertion is clearly a direct challenge designed to confront the perversely expansive interpretation of the “commerce clause” which has prevailed in the US Supreme Court for decades.
In spite of the Bureau of Alcohol, Tobacco, Firearms and Explosives’ assertion that the federal laws they enforce supercede the U.S. Constitution and the Tenth Amendment, the Montana Shooting Sports Association (MSSA) and the Second Amendment Foundation (SAF) filed a lawsuit late last year in federal court to validate the principles and terms of the Montana Firearms Freedom Act (MFFA).
While it is true that court challenges may be a valid component of an effective constitutional resistance movement, opponents of federal usurpation must be extremely cautious! Constitutionalists should always remember that court challenges and federal elections are NOT the last lines of defense.
If unconstitutional federal gun regulations, nationalized health care or Cap and Trade regulations are upheld by the federal courts down the road, we must be prepared. Supporters of these acts of usurpation will repeatedly cite these court rulings as proof that the constitutionality of these acts have been settled, once and for all.
Such false claims must not cause advocates of limited government to flinch, even for a moment. For while we cannot deny that the court’s rulings have any authority, we need not accept the finality of those decisions. A law’s constitutionality is not determined by the courts alone, not even at the level of the Supreme Court.
State governments have a concurrent power to decide when the federal government has overstepped its boundaries and violated the Constitution. They also have the authority to determine the best method to redress such a grievance when it occurs. Since the federal government is a limited creation of the people of the several states, it has no authority to usurp powers that were never granted to it in the Constitution, even when it is given extra-legal permission to do so by its own judicial branch. As Wisconsin Supreme Court Judge, Byron Payne declared in 1854,
“Every jot and tittle of power delegated to the Federal Government will be acquiesced in, but every jot and tittle of power reserved to the states will be rigidly asserted and as rigidly sustained.”
H. Robert Baker points out in his excellent book about Wisconsin’s battle to resist the federal government’s Fugitive Slave Acts of 1850:
“Paine believed that the US Supreme Court could not close down avenues of resistance when questions of fundamental liberty were at stake. If the national government usurped authority, it was up to the states rather than the Supreme Court to enforce the proper understanding of the Constitution. State officers, reasoned Paine, would be bound to protect the fundamental liberty that was the province of state authority.”
If the courts fail to uphold the Constitution according to its original meaning, the people of Arizona and every other state have at least three more measures which could be unstoppable if combined and executed in a coordinated and orderly fashion. These three lines of defense are state nullification, interposition and non-violent civil disobedience.
As Mahatma Gandhi once said, “First they ignore you, then they laugh at you, then they fight you, then you win.”
The laughter is finally dying down. Hopefully the feds will be wise enough not to fight the states and we the people will have the last laugh.
It’s your move federal government…
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Derek Sheriff [send him email] is a research analyst for the Tenth Amendment Center. His articles have appeared in various publications, and he writes regularly for the Center on issues related to state sovereignty and nullification. His blog and podcast “Principles of ’98” can be found at www.PrinciplesOfNinetyEight.Com. View his Tenth Amendment Center blog archives here, and his article archives here.