Heads Up

A Weekly edition of News from around our country

July 4, 1997 #42

by: Doug Fiedor fiedor19@eos.net

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THANK BRADY

It's in the history books as 95-1478, "Printz, Sheriff/Coroner, Ravalli County, Montana v. United States." Or, just "Printz" for common usage.

The Printz Supreme Court opinion, and the Lopez decision of two years ago, have a lot in common. Both are about guns -- sort of. The Printz decision

declared that Congress exceeded its authority by demanding background checks for handgun purchases and the Lopez decision said that Congress exceeded its authority when it tried to ban guns near schools.

But these opinions could just as easily have been about any object. The Brady law, which gave us the Printz decision, was a stupid law for Congress to pass. Stupid for many reasons, but only emotional around the country because it violated our gun rights.

The Printz Supreme Court opinion is surely about the stupidity of Congress, but is it about guns? No, not at all! It's about a Congress run amuck. It's about a Congress that no longer even pretends to obey the Constitution. It's about a President who acts more like a king. And, it's about a Supreme Court that thinks it's time to rein in the gross overreaching of the other two branches of government.

So was the Lopez decision, and others. That's why there are a lot of really worried bureaucrats in Washington this week.

First comes a little history lesson from the Supreme Court on why the federal government may not command a State to enforce it's laws. And folks, this section of the opinion is here for a very good reason. No regular reader of this newsletter is going to want to miss these words on this Independence Day.

"Enactments of the early Congresses seem to contain no evidence of an assumption that the Federal Government may command the States' executive power in the absence of a particularized constitutional authorization. The early enactments establish, at most, that the Constitution was originally understood to permit imposition of an obligation on state judges to enforce federal prescriptions related to matters appropriate for the judicial power. The Government misplaces its reliance on portions of The Federalist [Papers] suggesting that federal responsibilities could be imposed on state officers. None of these statements necessarily implies -- what is the critical point here -- that Congress could impose these responsibilities without the States' consent. They appear to rest on the natural assumption that the States would consent. Finally, there is an absence of executive commandeering federal statutes in the country's later history, at least until very recent years. Even assuming that newer laws represent an assertion of the congressional power challenged here, they are of such recent vintage that they are not probative of a constitutional tradition."

. . .

"The Constitution's structure reveals a principle that controls these cases: the system of "dual sovereignty." Although the States surrendered many of their powers to the new Federal Government, they retained a residuary and inviolable sovereignty that is reflected throughout the Constitution's text."

. . .

"Finally, and most conclusively in these cases, the Court's jurisprudence makes clear that the Federal Government may not compel the States to enact or administer a federal regulatory program."

And there it is folks, the Prozac moment for bureaucrats. It was written in very clear and concise English, too. This comes right from the majority opinion of the Supreme Court: "The Federal Government may not compel the States to enact or administer a federal regulatory program."

So, that takes care of the federal government ordering a state to do something. But the federal government also coerces states into obedience through threat of withholding highway, education and other funds, grants and what have you. The Court knows that. So apparently the Justices figured that if they were going to have the Washington bureaucracy on Prozac anyway, they may as well lay it all out for them at once:

"The Government points to a number of federal statutes enacted within the past few decades that require the participation of state or local officials in implementing federal regulatory schemes. Some of these are connected to federal funding measures, and can perhaps be more accurately described as conditions upon the grant of federal funding than as mandates to the States; others, which require only the provision of information to the Federal Government, do not involve the precise issue before us here, which is the forced participation of the States' executive in the actual administration of a federal program. We of course do not address these or other currently operative enactments that are not before us; it will be time enough to do so if and when their validity is challenged in a proper case. For deciding the issue before us here, they are of little relevance."

. . .

"Even assuming they represent assertion of the very same congressional power challenged here, they are of such recent vintage that they are no more probative [proof -- ed.] than the statute before us of a constitutional tradition that lends meaning to the text. Their persuasive force is far outweighed by almost two centuries of apparent congressional avoidance of the practice."

Whew! "Even assuming they [programs the federal government coerces the states into following] represent assertion of the very same congressional power challenged here. . ." Yeah, we see that it's the same. The federal government demands compliance to thousands of rules relating to subjects on which it has no right to even speak. It's all a grossly un-Constitutional overreach of power. And, it looks as though the court sees it that way too.

In other words, the Court will be looking for a case to use to limit many of the rules, regulations and programs the federal government now imposes on the states and the people.

Now the Court goes back to teaching a little history that should be of great interest to most of us.

"Finally, and most conclusively in the present litigation, we turn to the prior jurisprudence of this Court. Federal commandeering of state governments is such a novel phenomenon that this Court's first experience with it did not occur until the 1970's, when the Environmental Protection Agency promulgated regulations requiring States to prescribe auto emissions testing, monitoring and retrofit programs, and to designate preferential bus and carpool lanes. The Courts of Appeals for the Fourth and Ninth Circuits invalidated the regulations on statutory grounds in order to avoid what they perceived to be grave constitutional issues, and the District of Columbia Circuit invalidated the regulations on both constitutional and statutory grounds, see District of Columbia v. Train. After we granted certiorari to review the statutory and constitutional validity of the regulations, the Government declined even to defend them, and instead rescinded some and conceded the invalidity of those that remained, leading us to vacate the opinions below and remand for consideration of mootness. EPA v. Brown, 431 U.S. 99 (1977).

"Although we had no occasion to pass upon the subject in Brown, later opinions of ours have made clear that the Federal Government may not compel the States to implement, by legislation or executive action, federal regulatory programs."

There we go again! "The Federal Government may not compel the States to implement, by legislation or executive action, federal regulatory programs." There's the law of the land, folks. Now, how do we get the executive and legislative branches to comply? But there is more. And the following text is just as important as the text above.

"When we were at last confronted squarely with a federal statute that unambiguously required the States to enact or administer a federal regulatory program, our decision should have come as no surprise. At issue (in New York v. United States, 505 U.S. 144 (1992)), were the so called "take title" provisions of the Low Level Radioactive Waste Policy Amendments Act of 1985, which required States either to enact legislation providing for the disposal of radioactive waste generated within their borders, or to take title to, and possession of the waste -- effectively requiring the States either to legislate pursuant to Congress's directions, or to implement an administrative solution. We concluded that Congress could constitutionally require the States to do neither. 'The Federal Government,' we held, 'may not compel the States to enact or administer a federal regulatory program.'"

And so we see it again: "The Federal Government may not compel the States to enact or administer a federal regulatory program." This raised the heartburn level to new heights in the federal regulatory agencies last week. It sounds as though thousands of federal bureaucrats may have but one Supreme Court decision separating them from the unemployment line.

There was an interesting point in the N.Y. v. U.S. opinion cited above that was not mentioned. Justice O'Connor more or less made a new rule on the relationship between States and the federal government in that opinion. Therein, she writes: "When Congress exceeds its authority relative to the States, departure from the constitutional plan cannot be ratified by 'consent' of State officials." Yeah. Because the States are the Principals in the Constitutional arrangement. The Federal Government is an Agent of the States.

(Hello EPA and Army Corps of Engineers! Read it and weep. This is now the Law of the Land. Happy Independence Day eco-wackos.)

Actually, there is already enough Supreme Court case law to authorize scraping almost the whole of the federal regulatory bureaucracy. That is, there would be if the other two branches of government honored Supreme Court opinions. But to do so would mean that the executive branch must relinquish many of its un- Constitutional powers. It would also mean that Congress would again be responsible for writing all laws -- and keeping them within the bounds set down by the Constitution. Neither the White House nor Capitol Hill want any part of that. So, the Court's opinions are ignored as much as possible.

Getting another applicable case to the Supreme Court can sometimes be a crap-shoot. They do not accept many cases each year. Yet, our reading of the above opinion leads us to believe that the Court is actually yearning for the proper regulatory case to come along. And, it should also be noted that there is a shortcut available to the Supreme Court. That is, a State's attorney general may, at times, bring some of these cases directly to the Supreme Court under the "original jurisdiction" rule, bypassing all other courts.

So you see, the Printz and Lopez opinions were not really about guns at all. They were about freedom. Or rather, our lack of it.

ANYTHING FOR MONEY

Years ago, back in the old neighborhood, there were regularly scheduled "sit downs" between the men who ran the extortion rackets and the union bosses. They were all quite funny to watch arrive, too -- kind of like a bunch of roosters strutting around before a cockfight, each trying to impress the others.

Thirty-some years later the union bosses are scheduling their "sit downs" with a different type of extortionist. We're not saying whether these extortionists are better, worse, or the same as the group from the old neighborhood. You be the judge of that. Our only intent here is to point out some very striking similarities. . . .

Both Roll Call and The Washington Times reported that AFL-CIO leaders had a breakfast meeting with two House Republicans from New York last week.

Reps. Peter King and Jack Quinn apparently decided that maybe they could use a little of that free- flowing union cash for their campaigns (or whatever), and so scheduled a sit-down with 20 or so top union bosses to "discuss political strategy that would allow pro-labor Republicans to help advance the AFL-CIO's agenda."

And folks, the media got that exactly right! Those union boys never, ever meet with anyone unless there's something big in it for them. When they get their hooks in you, it is only to "advance their agenda."

Now, get this part. Here's where the extortion champs get extorted: "In exchange for their cooperation, the union leaders said they would protect helpful Republicans from future 'issue advocacy' ads and grass- roots lobbying pressure," according to two sources who attended the meeting.

Now wait just a darn minute here! Isn't that the same as saying we won't break your store windows or burn the place down if you give us protection money every week? And how are the union bosses going to stop others who want to publicize issues against these "protected" candidates -- send out the goon-squads, maybe?

This is good stuff; just like the old days. Except, today they're so open and brash about it they send their simi-veiled career destroying threats out via press releases. They get away with it, too. Newspapers print it like it was normal business.

It is not normal business, though. Or at least it shouldn't be. For instance, what do you think would happen if Burger King presented a proposal like that to McDonalds, or A&P to Krogers?

But it gets better yet.

The reports said that: "One union leader, in a decided shift from last year's strategy to wage war against the GOP majority, proposed forming a political action committee to funnel money to pro-labor Republicans for the 1998 elections. King and Quinn were asked to run the new PAC, sources said." Hey, no doubt! Then unions & friends can stop using brown paper bags to deliver secret campaign funding. That'll work.

The report said that other Republican House members said to be interested in working with the labor unions include Nancy L. Johnson of Connecticut, Frank A. LoBiondo and Bob Franks of New Jersey, Ray LaHood and Jerry Weller of Illinois, Sherwood Boehlert and Amo Houghton of New York, Lincoln Diaz-Balart of Florida and John E. Peterson of Pennsylvania.

Oh, and here's another interesting thought. There's a federal law that states: "It shall be unlawful for any person to solicit or receive any contribution within the meaning of section 301(8) of the Federal Election Campaign Act of 1971 in any room or building occupied in the discharge of official duties by any person mentioned in section 603, or in any navy yard, fort or arsenal." (18 U.S.C. 607)

Anybody know how that will work in government offices that are full of AFL-CIO workers who work for the elected officials who will be receiving their union campaign contributions? We hate to be a stickler for rules here. But isn't there some sort of "arms length" rule that applies to situations like this?

A PERSONAL RIGHT

Had American citizens been disarmed back in 1776, as the British wished, the Founding Fathers would have never been able to win independence.

Some say that when the people fear their government, there is tyranny; and that it is only when the government fears the people that there is real freedom.

Perhaps.

One thing most Americans realize is that no one "gives" you freedom. You "take" your freedom. You must take it, you must cherish it, and you must always be ready to defend it. And when the defense of freedom calls for the use of a gun, you must be prepared.

It is a personal and individual right of American citizens to own, keep and bear arms in defense of self, family, state and country. And because it is a right and not a permission granted by government, Americans are at liberty to choose when and how they will exercise this right. The only caveat being the old and well established rule that they may not disturb other law- abiding citizens with the exercise of this right.

So it is with some pleasure that we present Justice Clearance Thomas' concurring opinion [notes and all] to the above mentioned Printz case. Those of us who respect the wisdom of the Founding Fathers in adding the Second Amendment to the Constitution will appreciate the fact that at least one Supreme Court Justice is certainly in agreement.

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"The Court today properly holds that the Brady Act violates the Tenth Amendment in that it compels state law enforcement officers to 'administer or enforce a federal regulatory program.' Although I join the Court's opinion in full, I write separately to emphasize that the Tenth Amendment affirms the undeniable notion that under our Constitution, the Federal Government is one of enumerated, hence limited, powers. See, e.g., McCulloch v. Maryland, 4 Wheat. 316, 405 (1819) ('This government is acknowledged by all to be one of enumerated powers'). '[T]hat those limits may not be mistaken, or forgotten, the constitution is written.' Marbury v. Madison, 1 Cranch 137, 176 (1803). Accordingly, the Federal Government may act only where the Constitution authorizes it to do so. Cf. New York v. United States, 505 U.S. 144 (1992).

"In my 'revisionist' view, the Federal Government's authority under the Commerce Clause, which merely allocates to Congress the power 'to regulate Commerce . . . among the several states,' does not extend to the regulation of wholly intrastate, point of sale transactions. See United States v. Lopez, 514 U.S. 549, 584 (1995) (concurring opinion). Absent the underlying authority to regulate the intrastate transfer of firearms, Congress surely lacks the corollary power to impress state law enforcement officers into administering and enforcing such regulations. Although this Court has long interpreted the Constitution as ceding Congress extensive authority to regulate commerce (interstate or otherwise), I continue to believe that we must 'temper our Commerce Clause jurisprudence' and return to an interpretation better rooted in the Clause's original understanding. See also Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U. S. ___, (1997) (Thomas, J., dissenting). Even if we construe Congress' authority to regulate interstate commerce to encompass those intrastate transactions that 'substantially affect' interstate commerce, I question whether Congress can regulate the particular transactions at issue here. The Constitution, in addition to delegating certain enumerated powers to Congress, places whole areas outside the reach of Congress' regulatory authority. The First Amendment, for example, is fittingly celebrated for preventing Congress from 'prohibiting the free exercise' of religion or 'abridging the freedom of speech.' The Second Amendment similarly appears to contain an express limitation on the government's authority. That Amendment provides: '[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.' This Court has not had recent occasion to consider the nature of the substantive right safeguarded by the Second Amendment. [n.1] If, however, the Second Amendment is read to confer a personal right to 'keep and bear arms,' a colorable argument exists that the Federal Government's regulatory scheme, at least as it pertains to the purely intrastate sale or possession of firearms, runs afoul of that Amendment's protections. [n.2] As the parties did not raise this argument, however, we need not consider it here. Perhaps, at some future date, this Court will have the opportunity to determine whether Justice Story was correct when he wrote that the right to bear arms 'has justly been considered, as the palladium of the liberties of a republic.' 3 J. Story, Commentaries 1890, p. 746 (1833). In the meantime, I join the Court's opinion striking down the challenged provisions of the Brady Act as inconsistent with the Tenth Amendment."

Notes

1 Our most recent treatment of the Second Amendment occurred in United States v. Miller, 307 U.S. 174 (1939), in which we reversed the District Court's invalidation of the National Firearms Act, enacted in 1934. In Miller, we determined that the Second Amendment did not guarantee a citizen's right to possess a sawed off shotgun because that weapon had not been shown to be "ordinary military equipment" that could "contribute to the common defense." Id., at 178. The Court did not, however, attempt to define, or otherwise construe, the substantive right protected by the Second Amendment.

2 Marshaling an impressive array of historical evidence, a growing body of scholarly commentary indicates that the "right to keep and bear arms" is, as the Amendment's text suggests, a personal right. See, e.g., J. Malcolm, To Keep and Bear Arms: The Origins of an Anglo American Right 162 (1994); S. Halbrook, That Every Man Be Armed, The Evolution of a Constitutional Right (1984); Van Alstyne, The Second Amendment and the Personal Right to Arms, 43 Duke L. J. 1236 (1994); Amar, The Bill of Rights and the Fourteenth Amendment, 101 Yale L. J. 1193 (1992); Cottrol & Diamond, The Second Amendment: Toward an Afro Americanist Reconsideration, 80 Geo. L. J. 309 (1991); Levinson, The Embarrassing Second Amendment, 99 Yale L. J. 637 (1989); Kates, Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204 (1983). Other scholars, however, argue that the Second Amendment does not secure a personal right to keep or to bear arms. See, e.g., Bogus, Race, Riots, and Guns, 66 S. Cal. L. Rev. 1365 (1993); Williams, Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment, 101 Yale L. J. 551 (1991); Brown, Guns, Cowboys, Philadelphia Mayors, and Civic Republicanism: On Sanford Levinson's The Embarrassing Second Amendment, 99 Yale L. J. 661 (1989); Cress, An Armed Community: The Origins and Meaning of the Right to Bear Arms, 71 J. Am. Hist. 22 (1984). Although somewhat overlooked in our jurisprudence, the Amendment has certainly engendered considerable academic, as well as public, debate.

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