Tenth Amendment mandates and Firearms Freedom laws have sprung up in so many states that it is hard to keep track of them. This week, Governor Jan Brewer signed the Arizona Firearms Freedom Act (HB 2307) which made Arizona the sixth state to pass Tenth Amendment legislation that directly challenges federal control of firearms.
The Arizona Legislature has also passed a concurrent resolution- the Arizona Health Care Freedom Act, slated to appear on the ballot this November. Arizona’s voters will have the opportunity to amend the state’s constitution and guarantee Arizonans that all Arizonans have the right to spend their own money to obtain legal health care services.
Additionally Arizonans will have the right to stay out of any health care system.
A bill is pending that would nullify Cap and Trade (SCR 1050), and another pending bill would mandate that “..any incandescent light bulb manufactured entirely within Arizona and not exported to any other state is not subject to federal regulations.” (HB 2337).
Governor Brewer sent a warning to the federal government. The Arizona Firearms Freedom Act is intended to “..send a clear and convincing message that politicians in Washington should not attempt to get between Arizonans and their constitutional rights.”
First enacted in Montana, the Firearms Freedom Act (FFA) is a defense against Congress’ abuse of the commerce clause. Firearms manufactured in Montana that do not leave Montana are beyond the authority of Congress under its constitutional power to regulate commerce among the states. Thus, the FFA challenges Congressional abuse of the commerce clause that goes back to the 1930s when Congress enacted the National Firearms Act and other laws that unconstitutionally arrogate power to the federal government. See FirearmsFreedomAct.com.
Arizona, Montana, Tennessee, Utah, Wyoming, and South Dakota have enacted such laws. Governor Butch Otter will sign House Bill 589 into law making Idaho the seventh state to enact an FFA. Eighteen other states have introduced FFA bills in their state legislatures that have passed through one or more houses in five of those states.
Legislative findings contained in Arizona’s FFA declare that our union is a compact between the people of the several states, their state governments, and the federal government of the United States:
“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.”
Under the Arizona FFA, the federal government has no authority whatsoever to regulate commerce which takes place exclusively inside Arizona’s borders which pertains to the manufacture of firearms, firearms accessories and ammunition.
Sovereign state governments created the federal government with limited authority and powers not granted by the U.S. Constitution remain as perogatives of state government, not the other way around! Even though federal agencies like the BATF look to the precedents of the federal courts, we cannot assume that federal court decisions in conflict with state court decisions are the final word. 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.”
Derek J. Sheriff, coordinator for the Arizona chapter of the Tenth Amendment Center, cites an 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.”
According to Sheriff, the states have three lines of resistance if the FFA and other Tenth Amendment laws are not upheld by the courts; i.e., nullification, interposition and non-violent civil disobedience.
CLICK HERE – To view the Arizona Firearms Freedom Act (HB 2307)
See also www.PrinciplesOfNinetyEight.Com
According to the Houston & Texas News, a 1992 gun case may be critical to the outcome of pending litigation that challenges health care reform. In 1992, Alfonso Lopez, Jr., a Texas high school student, brought a .38-caliber handgun to school and was arrested at Edison High School in San Antonio.
“Lopez, a senior when he was arrested for handgun possession in March 1992, ended up facing federal charges of violating the Gun-Free School Zones Act of 1990. But the Supreme Court, on a 5-4 vote, threw out his conviction five years later on the grounds that Congress exceeded its regulatory authority under the Constitution when it approved the 1990 law, which makes it a violation of federal law to possess a firearm in a school zone.”
Thirteen state attorneys general are preparing the way for legal arguments based on the Lopez ruling that the Constitution's commerce clause limits the regulatory powers of Congress to matters involving commerce that occurs across state lines- as opposed to intrastate commerce. Chief Justice William Rehnquist’s Court ruled in Lopez that the 1990 Gun-Free Zones Act was unconstitutional because it had nothing to do with commerce between states. Thus, Congress does not possess “a general police power of the sort retained by the states,” according to Rehnquist’s majority opinion.
The lawsuit filed by the Texas Attorney General and twelve other state attorneys general asserts that national health care does not meet the legal criteria for interstate commerce and therefore the so-called mandate for health care reform is usurping the states’ general police power by requiring Americans to purchase health insurance. For almost sixty years, prior to the Lopez ruling, the Supreme Court rubber-stamped Congress’ claims of regulatory power by engaging in legal pettifoggery that eroded Constitutional limitations on the federal government’s power.
In the 2000 case of U.S. v. Morrison, the justices ruled against a provision of the Violence Against Women Act that gave a federal cause of action to victims of rape, domestic violence and other gender-motivated crimes; i.e., Congress provided a federal right to sue attackers in federal court- a right to sue that usurped general state police power that has always remained with the states in the state courts.
Despite derisive assertions that U.S. health care crosses state lines and that such economic activity involves all Americans that might potentially benefit from national coverage, the health care law violates the 10th Amendment that states that powers not specifically delegated to Congress by the Constitution are “reserved to the states respectively, or to the people.”
The lawsuit “is definitely not frivolous,” said professor Randy Barnett of Georgetown University in an interview with the National Law Journal. “Anyone who says it is — and I know a lot of law professors have — they're whistling past the graveyard,” Barnett said. “Anything that has never been done before has no precedent for it. And this (health care reform law) has never been done before.”
In an American Thinker article entitled The Perfect Constitutional Storm, Larrey Anderson argues that lawsuits brought by the states could play a role in a comprehensive strategy to challenge the constitutionality of ObamaCare. But the states are just waking up:
States have ceded power, with few complaints, to the federal government for highway funding, control of education, Medicare and Medicaid mandates, management of waterways, etc., etc., ad nauseam, for over fifty years.
Article VI of the Constitution states in part:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Anderson points out that since the 1930s, the Supreme Court has interpreted the "commerce clause" in such a way that wheat grown by a farmer and fed to his own chickens is deemed to be commerce across state lines! (See Wickard v. Filburn.)
Anderson cites the example of Marshall v. Barlow's Inc. The Supreme Court summarized the case:
On the morning of September 11, 1975, an OSHA inspector entered the customer service area of Barlow's, Inc., an electrical and plumbing installation business located in Pocatello, Idaho. ... Mr. Barlow inquired whether any complaint had been received about his company. The inspector answered no, but that Barlow's, Inc., had simply turned up in the agency's selection process. The inspector again asked to enter the nonpublic area of the business; Mr. Barlow's response was to inquire whether the inspector had a search warrant. The inspector had none. Thereupon, Mr. Barlow refused the inspector admission to the employee area of his business. He said he was relying on his rights as guaranteed by the Fourth Amendment of the United States Constitution.
In 1978, the Supreme Court held that OSHA needed a search warrant to enter a private business.
Anderson posits a hypothetical scenario in which the Court might rule against ObamaCare:
A young single mother whose child is covered by CHIP (or perhaps the mother just takes her child into the emergency room when the child is sick) decides that she does not need or want her own health insurance. She works for a small business (under fifty employees) that is not required to provide her such insurance.
Anderson’s analysis is that while the government has the right to tax its citizens' income under the 16th Amendment, the "penalty" accessed against the mother is not a tax. It is clearly called a "penalty" -- not a "tax" -- in the legislation, and Obama has specifically denied that the "penalty" is a tax. The law is a clear violation of the 6th and 8th Amendments. The 6th Amendment grants a trial by jury in a criminal case. The 8th Amendment says:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The Senate Democrats added language to the bill making sure to say that the "penalties" mentioned in the bill are not criminal fines to preclude constitutional challenges under the 6th and 8th Amendments:
But if the "penalties" in the law are neither taxes nor criminal fines, then what in the world are they? This is why the Democrats put the collection process of the ill-defined "penalty" in the hands of the IRS. It is extraordinarily difficult to sue the federal government. It is even harder to sue the federal government if one is first forced to go through the IRS.
The mother will have to deal with a maze of IRS bureaucracies in order to ever have her day in court. Thus, placing collection and enforcement of the "penalties" in the hands of the IRS is the most insidious part of ObamaCare, according to Anderson.
The mother could sue under the 9th Amendment:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Anderson underscores the irony of the fact that previous activism from the bench has created substantive due process rights such as "a woman’s right to choose", the right to engage in sodomy (when the parties consent) and other items on the “progressive” agenda. Anderson cites Griswold v. Connecticut, the poorly decided 1965 Supreme Court case that articulated the judicial "reasoning" behind Roe v. Wade (legalized abortion), Planned Parenthood v. Casey (husband need not be notified if wife has an abortion), and Lawrence v. Texas (Texas sodomy law ruled unconstitutional).
What if Griswold v. Connecticut is trotted out by the Supreme Court to overturn Obamacare?
The Griswold court, found that "... specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy."
The Supreme Court has found such theological pronouncements to have an importance that verges on the utterances of the Oracle at Delphi… or the doctrines of some ancient Mystery Cult, perhaps. Griswold stands for the precept that a state cannot prevent a married couple from purchasing contraceptives. If the converse is also true -- that the state cannot force a married couple to buy and use contraceptives, we can substitute "health insurance" for "condoms" and Griswold gives us an argument against the constitutionality of ObamaCare. Voila!
The Griswold decision also announced that, "In NAACP v. Alabama, 357 U.S. 449, 462, we protected the 'freedom to associate and privacy in one's associations.'" Justice Douglas went on to proclaim that:
"The Fourth and Fifth Amendments were described in Boyd v. United States, 116 U.S. 616, 630, as protection against all governmental invasions 'of the sanctity of a man's home and the privacies of life.'"
Private lives with private health care arrangements- will this soon be the stuff of nostalgic whimsy?
See The Perfect Constitutional Storm
