Listening to the interview that took place on the Chad Hasty Show (Monday January 14, 2013) with Texas State Rep. Steve Toth, I was very excited about his 2nd Amendment Protection Bill. (Listen to the full interview here.) His bill will mimic Wyoming’s Firearms Protection Act. However, toward the end of the interview, Rep. Toth was asked if this bill would be aimed at just executive orders or all federal legislation affecting the Second Amendment.
CHAD HASTY: Would this law that you’re filing, would this bill still cover any federal overreach that does pass through the House? That does pass through Congress?
REPRESENTATIVE TOTH: Here’s the problem. Then it comes under the Supremacy Clause. While yes we would love, we would love, love, love at the end of the day for this bill to stand in the way of that. At the end of the day the Supremacy Clause is gonna trump it.
My jaw hit the ground. Here is another state representative that believes our federal government can do whatever they want. Maybe I shouldn’t be surprised. This kind of thinking permeates our society, thanks in part to our education system that teaches only the Hamiltonian version of history. The misunderstanding of the supremacy clause continues to erode not only our own state’s rights but allows the Federal Government to continue to dupe us out of our liberties. The supremacy clause says the Constitution and laws in pursuance thereof shall be the supreme law of the land. The supremacy clause does not say unconstitutional laws shall be the supreme law of the land. Many wrongly believe that the “Supremacy Clause” gives Washington D.C. constitutional carte-blanche power. This is not what the founders intended. Too many, like Rep. Toth, make the mistake of believing that if Congress passes a law, then we just have to live with it. Nothing could be further from the truth.
Here is what the founders said, concerning the Supremacy Clause:
“…when Congress passes a law consistent with the Constitution, it is to be binding on the people…The question, then, under this clause, will always be whether congress has exceeded its authority.” - James Iredell, North Carolina Ratifying Convention
“[ Federal law] can be supreme only in cases consistent with the powers specially granted, and not in usurpations.” – William R. Davie, North Carolina Ratifying Convention
“[Federal] law not warranted by any of the enumerated powers” would constitute “an infringement of the Constitution.” – John Marshall, Virginia State Ratifying Convention
“…the Congress have the power of making laws upon any subject over which the proposed plan gives them a jurisdiction, and that those laws thus made in pursuance of the Constitution, shall be binding upon the States.” – Chief Justice McKean, Pennsylvania Ratifying Convention
“laws…made in pursuance of the Constitution strengthen the principle that a law repugnant to the Constitution is void.” - Chief Justice McKean, Marbury v. Madison
“The nullity of any act inconsistent with the Constitution, is produced by the declaration that the Constitution is the supreme law.” - Chief Justice McKean, Gibbons v. Ogden
“This balance between the National and State governments…is of the utmost importance…It forms a double security to the people.” - Alexander Hamilton, New York Ratifying Convention
Antifederalist’s saw “the Supremacy Clause” and pointed to it with alarm. Alexander Hamilton assured them that each government [federal and state] was supreme in its sphere. He wrote in Federalist #33 “[federal laws] which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities” of the States [will be] acts of usurpation [not] the supreme law of the land”.
The historical record is much too clear and consistent for any other interpretation of the Supremacy Clause. This is why critics typically give up trying to argue the matter and instead change the subject, proposing instead that none of this matters anyway, since what the Framers may have written over 200 years ago is of no import to modern-day Americans. If this argument is true, then does that mean the Bill of Rights has been replaced as well? If so, who decides which parts of the Constitution matter and which don’t? The implicit answer is that we let federal judges decide on the evolving meaning of the Constitution. But, the federal courts have, for all intents and purposes, ceased to police the federal government. We cannot be expected to believe that the matter is settled and that an odious law is to be complied with because a handful of politically well-connected lawyers have informed us that all is well. This gives that small group of well-connected lawyers (the Supreme Court) a monopoly on determining how Americans will be governed. Such an arrangement sounds much less desirable when stated that way, which is precisely why it never is stated that way.
It is imperative that we remember that the Constitution cannot enforce itself. It is the duty of the State governments, as parties to the compact, to protect the citizens from encroachments and oppression, by refusing obedience to unconstitutional actions. If we the people created the Constitution, then it is up to we the people to enforce it. Remember, a government without limits is tyranny.