I have never written on the Second Amendment, because it is just not a focus of the organization I lead. Conversely, Second Amendment organizations never talk about social issues, like same-sex “marriage.” But for those who love guns and also love the Tenth Amendment, the Obergefell same-sex “marriage” case may have just put you on the horns of a dilemma.
Will the Second Amendment Be Trumped or Limited?
The Obergefell case should concern gun rights advocates because of the evolutionary view of constitutional law it embraces. It created a new right not found in the text of the Constitution—same-sex “marriage” grounded in an implied constitutional right to sexual autonomy—and has set it on an inevitable collision course with an express constitutional right to the free exercise of religion. The current constitutional trajectory is toward religious liberty being limited by sexual liberty.
By analogy, Second Amendment supporters have to wonder what new right might liberals come up with, not in the text of the Constitution, and pit against the express constitutional right to bear arms? Or better yet, if the words “liberty” and “due process” in the Fourteenth Amendment can be morphed into the right to marry someone of the same sex, what meaning might the court infuse into the “right to keep and bear arms”?
For example, some, including President Obama, are now morphing the words “free exercise of religion” into the expression “freedom to worship.” And courts are increasingly saying that religion is what you do in the privacy of your home and something you give up when you enter into the stream of commerce as a member of the state.
So what is to keep the Court from someday saying that the “right to keep and bear arms” was only intended to protect one’s “liberty” in the context of home invasions and that people have a right not to have their life or liberty threatened by people who carry guns in public?
If that makes you laugh, I can direct you to some preachers who probably laughed eleven years ago when somebody suggested that the Massachusetts same-sex “marriage” case might lead to a restriction of the First Amendment’s free exercise clause.
With the stroke of the Supreme Court’s pen, it could be “bang!” the NRA is dead.
Will the Second Amendment Trump the Tenth?
As with same-sex “marriage,” the U.S. Supreme Court is driving the constitutional evolution by which the Second Amendment is beginning to trump the Tenth Amendment. In 2010, in McDonald v. City of Chicago, the Supreme Court held that the Second Amendment right applied to invalidate laws enacted the states (or their political subdivisions, cities). Until then, the limitation on restricting gun rights was confined to laws enacted by the federal government.
For many, this latter statement will seem shocking, but that was true with respect to all the rights enumerated in the Bill of Rights. None of those rights were protected from laws enacted by states until after adoption of the Fourteenth Amendment. For example, since 1870, Section 26 of Article One of the Tennessee Constitution has read:
Section 26. That the citizens of this state have a right to keep and to bear arms for their common defense; but the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime. (emphasis supplied)
Arguably, in 2010 the Supreme Court trumped that provision of our state constitution, though I don’t recall legislators or citizens being as mad about that violation of state’s rights as they have been about marriage.1
Anyway, some Second Amendment supporters may now take the next step by trying to apply the following logic from Obergefell to the issue of gun carry permits: If an un-enumerated right to same-sex “marriage” can require one state to accept another state’s marriage license, cannot a restrictive gun rights state be required to accept another state’s carry permits, at least for limited periods of time such as trips and vacations?
I realize that other constitutional arguments can be made to reach this same result, but Obergefell certainly opens the door to the argument that a constitutional right trumps a state’s rights relative to the same subject. And if the NRA can walk through that door, and with the Supreme Court’s power to make up new rights, then expect others to try the same door until the Tenth Amendment has more holes in it than a target at the local shooting range.
1 To those who will misread that comment as anti-Second Amendment, let me be clear: to say that a state can regulate the wearing of firearms as a right under the original Tenth Amendment, which Tennessee’s voters chose to do in their constitution, is not the same as saying the state should actually exercise that power in any particular way. If conservatives were consistent and didn’t like that kind of provision in a state constitution, then they could have offered an amendment to change the state constitution rather than have the Supreme Court do the work for them. Ironically, years ago, when, as a state Senator having taken an oath to uphold the state constitution, I mentioned Article 26 in a gun rights survey, I got downgraded as a candidate.
— David Fowler, President of FACT
Last week I mentioned one of the reasons the states lost the rights and prerogatives that were supposed to be retained by them under the Tenth Amendment. This week I’ll point to an amendment to the Constitution that had the unintended effect of further undermining the Tenth Amendment, but more importantly, there may be a lesson we can learn from how that amendment passed that might point a way forward today.
In my commentary How We Lost the Tenth Amendment, I pointed out how the Supreme Court has increasingly encroached on the rights of the states and why Congress has failed to protect the states. But it is not just the Court that has trampled on the rights of states; Congress itself has often gotten in on the action.
The Intended ‘Checks’ on Congress
There was one very important protection given the states under the original Constitution that would have incentivized pushback against the Court and legislative restraint by Congress. It was the “election” of U.S. Senators by the state legislatures. Let me give you a real-life example of how that check might have worked.
How the ‘Check’ Worked in Real Life
As a state Senator, I remember carrying a bill to change a state law in order to comply with a federal mandate on the collection of child support, an inherently state function, like the issue of marriage recently taken over by the Court. The mandate was so egregious and contemptuous of our state law that the mild-mannered and gentlemanly former state Sen. Douglas Henry, a Democrat, slammed down his microphone after speaking against the bill and excused himself from the Senate chamber lest, in his own words, he say something he would regret. The contempt for Congress at that moment was virtually unanimous and bi-partisan!
I tell you that to assure you of this. That particular law would never have passed the U.S. Senate if those then serving in the Senate had had to come to us the next time they were up for “election.” They would have been turned out on their ear.
But here is the key point: It was an issue that the majority of Tennessee’s voters were unaware of and one that would not have damaged their chance of re-election based on popular vote.
The Amendment That Solved What Problem?
Popular vote for the members of the U.S. Senate is exactly what we got with the adoption of the Seventeenth Amendment. It replaced the selection of senators by state legislatures with direct elections
This is not to say that there were no problems with the selection by state legislatures of the members of the Senate. There were mainly two. The first was a feeling that senatorial elections were “bought and sold,” William Clark of Montana famously saying that when he bought a state legislator for the Senate, he expected him to stay bought. The second was that legislatures sometimes reached an impasse on who to select, and a Senate seat would go vacant for a while.
But do we not today feel like elections for the U.S. Senate are still all about who has the most money? Was the problem really solved, or was the pot of money needed to “buy” an election just made bigger and put more out of reach by more people because of the number of votes that now have to be “bought?” The deadlock issue was not that frequent, and the losers were the states themselves; they had a disincentive to deadlock.
A Plan Going Forward
Interestingly, the pressures that brought about the Seventeenth Amendment might be instructive in restoring some vitality to the Tenth Amendment.
The movement for the Seventeenth Amendment began in earnest in the late 1800s, but by 1910, thirty-one state legislatures had passed resolutions in support of a constitutional amendment for direct elections. That same year, the Senate was awakened to the demands of the people by seeing ten Republican senators opposed to the amendment forced out of their seats. And by 1912, twenty-seven states had called for a constitutional convention on the subject, close to the thirty-one then states needed to force the call.
Today, the call for a constitutional convention is growing louder. Tennessee’s Senate resoundingly passed a resolution for a convention last year and the House will take it up this year. Whether the convention is a good idea is a discussion for another day, but it is a means by which the states can raise their voices.
What is missing is a growing movement of states passing resolutions demanding Congress interpose itself between the states and the federal judiciary and the defeat of a few members of Congress who do not head those resolutions. Perhaps during the next legislative session we can start a “resolution movement” by passing a demand that Congress reign in the federal courts by various means. Then we can press this issue in future Congressional elections, starting next year.
I’m up for it. Are you?
—David Fowler, President of FACT
As I continue to reflect on the Supreme Court’s marriage ruling, I’ve wondered how we got to the point that the states lost control of an area of the law that, just two years ago, the Court acknowledged to be historically within their province. I have an idea, and the blame for it lies at our feet.
Recently, I was re-reading portions of the Federalist Papers to better understand the role of the federal judiciary as envisioned by our Founding Fathers. I was doing so that I might learn something from the past that would help me better understand what could be done in the present to reign in the Supreme Court in order to restore greater liberty to the people by returning more power to the states.
In Federalist Paper 46, James Madison said that “the powers proposed to be lodged in the federal government” (which includes the judicial branch) would be “as little formidable to those reserved to the individual States, as they are indispensably necessary to accomplish the purposes of the Union.” Madison said this to silence “all those alarms which have been sounded, of a meditated and consequential annihilation of the State governments” by those opposed to the Constitution.
More particularly, Madison said the hope was that structure and limited powers under the Constitution would “partake” of a “spirit” such that the “new federal government” would be “disinclined to invade the rights of the individual States, or the prerogatives of their governments.”
This was true even with respect to the judiciary. In discussing the role of the judiciary in Federalist Paper 82, Alexander Hamilton said, “the States will retain all PRE-EXISTING authorities which may not be exclusively delegated to the federal head,” which “head” obviously included the federal Judiciary.
So, if that was the intention, we have every right to ask what happened. Were not the other two branches of the “federal head”–the Executive and the Congress–infused with that “spirit” which was to protect the “rights” and “prerogatives” of the states?
Of course they were, but they have failed to use them. But why?
I think the answer can be found, at least in part, in Federalist Paper 78, wherein Hamilton said that “liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments.”
In my view, that “fear” has been realized because expansive powers given by the Supreme Court to Congress (consider Obamacare, now known as SCOTUScare) and to the Executive have given rise to the aforesaid “union,” aggregating in “the federal head” great power by which their respective attentiveness to the governments of the states has been diminished.
I’m not necessarily big on conspiracy theories, but I am big on the fact that men are not angels, as Madison said in Federalist Paper 51. In other words, men lust for power and control and have since Adam and Eve decided to take things in their own hands. The Supreme Court gave Congress and the Executive powers beyond those envisioned by our Founding Fathers and, as they say, who wants to “bite the hand that feeds them”?
So, is the loss of our “rights” and “prerogatives” as a state the fault of our presidents and members of Congress over the years? No, the fault is ours. “We the people” have failed to understand our own Constitution and how our compound form of government–a limited federal government and state governments–was supposed to work. As a consequence, we’ve given our votes to presidents and members of Congress who either did not understand it or who wanted to aggregate power to themselves.
We have met the enemy and it is us.
— David Fowler, President of FACT