The ability of legislators to convince the public of their commitment to the rule of law, private property rights and free markets all the while authoring and voting for laws that protect inept state agencies and grant special privilege to various favored business interests is worthy of an Academy Award.

For over 95 years, since our legislature defined common carrier pipelines, they have been under the jurisdiction of the Texas Railroad Commission.

It wasn’t until August 2011, however, that the Texas Supreme Court in its Denbury Green decision documented what landowners had been protesting for years: the designation of common carrier status by the Texas Railroad Commission was a farce.  There is, in fact, no designation.  The Railroad Commission claims they have no authority to determine whether a company is or is not a common carrier pipeline.

Here’s the rub: the Railroad Commission was well aware that pipelines were telling landowners the Commission had designated them as common carriers thus conveying on these pipelines the power of eminent domain.  That power gave pipelines the ability to “legally” grab easements across private property often at prices well below the market value and over the strident objection of the landowner and yet, the Railroad Commission did nothing to halt the practice.

So now rather than recognize the conflicted relationship that exists between the industry and the state agency, bills by Senators Davis (SB 1625) and Duncan (SB 1637) and Rep. Lewis (HB 2748) all seek to leave that designation in the hands of the Railroad Commission.  The senate bills may be well intentioned in that they more specifically define a common carrier pipeline and even prescribe the type of information to be considered prior to making a common carrier designation.  They fail however to address the conflicted relationship between the agency and those it is supposed to regulate.  Landowners have little hope that their interests will be considered, much less protected.

There is a fourth bill working its way through the session, HB 3547 authored by the Rep. Rene Oliveira.  Rep. Oliveira is the former chairman of the House Land and Resource Management Committee and took testimony on this issue during the interim.  HB 3547 seems to acknowledge the inability of the Commission to conduct fair and impartial evaluations and thus moves the decision to the State Office of Administrative Hearings and to insure that the effected landowner’s interests are considered, the bill requires a public hearing in at least one county in the pipeline’s path.

When the parties are so clearly unmatched, as is often the case here with very large and very wealthy pipeline companies pitted against individual landowners, the burden on the state to insure just conduct, fair play, is paramount.  Read these bills and call the authors.  Let’s make sure we enact good law not just more law.

Senator Wendy Davis (512) 463-0110

Senator Robert Duncan (512) 463-0128

Rep. Tryon Lewis (512) 463-0546

Rep. Rene Oliveira (512) 463-0640

More about this bill from our friends at Texas Sound Money:

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The Depository would be a state agency under the purview of the State Comptroller. The establishment of the depository will create a means for intergovernmental transactions to occur in gold and silver. Taxes could be paid in gold and silver and it would allow people who receive payments from the government to elect gold or silver for payment. It would also allow Texas citizens to open an account and deposit their gold or silver in the state depository. They could then use the electronic system to make payments to any other business or person who also holds an account. All gold and silver would be redeemable on demand. Fractional Reserve banking would be prohibited as well as all other types of banking or investment with the deposits.

This bill will solve four of the most common problems associated with using gold or silver as currency:

PROBLEM: There is not much of a gold and silver economic ecosystem. In other words there has to be a critical mass of places which will accept gold and silver before other places accept gold or silver.
SOLUTION: The Gold Depository bill solves part of that problem by establishing, that at the very minimum, everyone can pay their taxes using gold or silver. Plus it would open up the door for government employees and contractors to receive payment in gold or silver if they chose to do so

PROBLEM: People are worried about the complexity of their taxes, especially the Capital Gains Tax.
SOLUTION: The Gold Depository Bill charges the Texas Comptroller to devise a means for calculating the Capital Gains Tax. This relieves citizens of the fear of reprisal if they don’t calculate their Capital Gains Tax properly. This bill will add a layer of protection for businesses and citizens of Texas who elect to use precious metals as money.

PROBLEM: People and businesses don’t want to incur the loss that happens when converting federal reserve notes (dollars) to gold or vice versa.
SOLUTION: The Gold Depository Bill resolves some of this by establishing a system of payments and receipts which never require a conversion to federal reserve notes.

PROBLEM: People and businesses don’t use gold and silver as money because they are afraid, afraid of being prosecuted or afraid of confiscation.
SOLUTION: The Gold Depository bill functions as a shield for the citizens of Texas who wish to use gold and silver as money. It will provide a layer of protection for the citizens of Texas from any federal charges of counterfeit. The bill also has protections from confiscations.

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Please download the single-page legislative brief for this bill from the Texas Center for Economics, Law and Policy and share with your representative today to show your support for the Texas State Depository.

And for those of you who may be visual learners and fans of satire, check out this not-so-far-from-the-truth video explanation of HB 3505:

(4)  It is a defense to prosecution for an offense under Subsection (b) that the person performed the act consistent with an explicit and applicable grant of federal statutory authority that is consistent with the United States Constitution.

That little bit of language gives the federal government a loophole big enough to drive a gun-confiscating truck through!  Every federal agent will certainly contend that they are “perform[ing] consistent with an explicit and applicable grant of authority…consistent with the U.S. Constitution” therefore exempting them from any penalties this law may try to impose.

This type of legislation is typical of the toothless bills we have seen coming out of Austin for several sessions now.  This type of legislation allows your legislators to tell you, their constituents, how “tough they are” or “how hard they’re fighting for you” (or whatever else they think they need to say for you to put them back in office) while at the same time gives the wink and a nod to the feds allowing both Austin and Washington to breath a collective sigh of relief that business will continue as usual.

Sadly, Texans are buying it because few know or understand the Constitution and the powers it affords the states, so let’s go back and have a look shall we?

At the end of the American Revolution, the states were declared their own sovereign entities.

“acknowledges the said United States, viz. [that is to say] New Hampshire, Massachusetts-Bay, Rhode Island and Providence Plantations, Connecticut, New-York, New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia [to be] sovereign and independent states.”  - Treaty of Paris with Great Britain, Article I

Article V of that same treaty states that British subjects were to be free to travel to “any of the thirteen United States,” indicating that Britain was dealing with thirteen sovereign and individual states, not with one “unitary” nation.

American colonists were leery, rightfully so, of creating another central government like the one against which they just finished fighting a war. George Washington attested to this fact during Constitutional Convention:

“independent sovereignty is so ardently contended for…the local views of each State…will not yield to a more enlarged scale of politicks.”

Assurance was given to the states that they would retain their sovereignty and only give up a small portion their powers to the proposed federal government.  The founders explained this principle as follows:

”The laws of the United States are supreme, as to all their proper constitutional objects; the laws of the states are supreme in the same way…the states have certain independent powers, in which their laws are supreme; for example, in making and executing laws concerning the punishment of certain crimes, such as murder, theft, etc. the states cannot be controlled…This balance between the national and State governments…is of the utmost importance. It forms a double security for the people.”- Alexander Hamilton, New York Ratification Convention

“We have thirteen distinct governments . . . the states, and the United States, have distinct objects. They are both supreme. As to national objects the latter is supreme; as to internal and domestic objects, the former.” – Robert Livingston, New York Ratification Convention

”The two governments act in different manners, and for different purposes, the general government in great national concerns, in which we are interested in common with other members of the Union; the state legislature in our mere local concerns….They can no more clash than two parallel lines can meet.” Judge Edmund Pendleton, Virginia Ratification Convention

“The powers delegated in the proposed constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.  The former will be exercised principally on external objects as war, peace, negotiations and foreign commerce…  The powers reserved to the States will extend to all objects which, in the course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement and prosperity of the State.” – James Madison, Federalist #45

Our state legislators should not get a pass for ignorance on this issue. Our representatives in Austin raise their right hand and take a solemn oath to support and defend the Constitution of the United States. In order to defend the Constitution it is imperative that they know what it means. Lest we have forgotten, the Second Amendment to the Constitution states: “… the right of the people to keep and bear arms, shall not be infringed” …even if you are an agent of the federal government and claiming to be acting consistently with the Constitution. There is no wiggle room in the words of that amendment and neither should there be in legislation coming out of Austin “protecting” that right.

Friday, March 8, 2013,  Rep. George Lavender of Texarkana filed HB 3742 to eliminate the property tax in Texas! Blood, sweat, tears, more blood, more sweat, the boulder we have been pushing against for over four years has finally rolled over. We are one giant step closer to true private property ownership in our state. The full text of the bill is not yet available online but here are the highlights:

LEGISLATIVE PROPOSAL BRIEF
by Rick Cunningham from the Texas Center for Economics, Law and Policy

HB 3742: The Tax Reform Act of 2013
An Act Relating to repealing certain state sales, use, excise, franchise, severance, production, occupations, gross receipts and inheritance taxes, to repeal or limit certain local sales, use, excise and ad valorem property taxes, to enact a statewide and local value added tax, and to reform school finance and administration

THE ISSUE
Texas’ present state & local systems of taxation & public finance:

• Unfairly distribute the tax burden among individuals, groups and industries
• Distort economic incentives, create inefficiencies and suppress growth in Texas jobs and income
• Systematically deprive ad valorem property taxpayers of their fundamental due process & property rights
• Persistently fail to meet Texas constitutional standards for provision & financing of public education
• Prevent millions of Texas pupils & family members from residing in truly local, community school districts
• Promote a multiplicity of special purpose districts driven by tax base distribution in preference to local need

THE SOLUTIONS
Texas Replaces its Pyramiding, Distorting & Inefficient State Taxes with a 7% Value Added Tax:

• A flat-rate value added tax promotes sound economic decision-making, efficient and transparent collection & administration, and fair distribution of the tax burden in proportion to real economic output
• Virtually all other state taxes are repealed
• No business is disadvantaged by the VAT relative to other businesses, but very small businesses are exempt
• Exemptions are created also for governmental, public and not-for-profit organizations
• VAT is embedded, but disclosed, in the price of goods & services
• Individuals not engaged in a trade or business bear no tax reporting burden

Local sales & Use Taxes Are Replaced with Local Value Added Taxes

• The Comptroller collects, apportions and allocates local revenues to local taxing authorities
• Municipalities’ 1/2% sales & use tax rate cap is raised to a 1% VAT rate cap
• Counties’ tax rate caps remain at 1%, but the higher VAT tax base permits higher tax revenues
• School districts are authorized to levy up to 1/2% VAT within their boundaries for enrichment purposes
• Other local sales taxes are converted to VAT at reduced rates, but total local VAT burden capped at 3%

The Ad Valorem Property Tax Is Phased Out

• The annual ritual of reappraisals, hearings & denials ends for most Texans & phases out for most others
• “Basic” education funding replaced with allocations from state general revenues under expanded Foundation School Program that preserves existing formulae for equity and proportionality
• “Enrichment” education funding sourced through local VAT and other revenues
• Freed from their dependence on a large property tax base, oversized, bureaucratic school districts may be transformed into little engines of teaching excellence, community involvement & truly local accountability

Download a PDF of this brief

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The sword has been forged. Will you help us carry it into the battle? Victory is liberty.

“Our appellate brief is now in front of the Sixth Circuit Court of Appeals and we are confident this panel of experienced judges will give all the issues the thoughtful consideration and thorough review they deserve,” noted landowner Julia Trigg Crawford.  “Since the lower court’s ruling against us in August we’ve worked diligently to elevate the dialogue around property rights and eminent domain abuse.”

“Since before 1920, the Texas legislature wisely limited the enormous power of eminent domain authority to a common carrier subject to the Texas Railroad Commission’s (RRC) jurisdiction and other legal requirements. In the Crawford family’s case, the RRC admitted it does not have jurisdiction over TransCanada’s pipeline, but the trial court allowed TransCanada to take the Crawford’s private land anyway,” commented Hammond, Crawford family farm attorney. “This decision highlights a serious problem, not just for the Crawfords, but for many families across Texas.  Now this important matter will be decided by a higher court.”

Groups including We Texans and Public Citizen are supporting Crawford and her family in their continuing resolve to pursue this landowner’s case to a higher court.  The groups view this precedent setting case as a private company attempting to take land for private use and foreign profit.

Debra Medina, executive director of We Texans, applauded the Crawford family’s courage in continuing their opposition to the taking of their property.  “We agree with the Crawford family in believing that there has been an erroneous ruling against them and hope that the appellate court will right that wrong.  In doing so, the court can protect not only the Crawford Family farm, but also set a precedent that will ensure the law is followed and all private property in Texas is duly protected.”

“What’s at stake here is whether the state should allow a public agency to allow condemnation for private gain. The Crawford case is emblematic of the failure of the Texas Railroad Commission to effectively ensure that companies doing business in Texas are indeed a common carrier,” commented Tom Smitty Smith of Public Citizen.  “The State has laid this burden of proving up common carrier upon landowners such as the Crawfords, while the proof should be incumbent upon those who want to business here in Texas. The entire process needs to be overhauled.”

“The Railroad Commission allowed TransCanada to have the status of a common carrier, yet the agency has stated that it doesn’t have the authority to give eminent domain powers to TransCanada,” added Smith.  “TransCanada has yet to prove to the court that they are transporting the product for the public good or for the public for hire as required by law.”

“Currently, there is a loophole in Texas law that allows a company to simply check a box on a one page form at the Railroad Commission that allows companies to declare themselves a common carrier without any checks and balances,” noted Rita Beving, North Texas Public Citizen organizer.  “Last summer we started a dialogue with the Land & Resource Management Committee in the Texas House of Representatives regarding this problem.  We are hoping the matter of common carrier and eminent domain gets rectified during this year’s legislative session.”

“I’ve testified to legislative subcommittees at our state Capitol, shared my story with the Sunset Commission in their review of the embattled Texas Railroad Commission, and traveled to Washington, D.C. twice to speak to government agency representatives and support groups,” Crawford added.  “At the heart of this issue is the fact the Texas Railroad Commission has seemingly abandoned Texas landowners.  By their own admission, they are aware that companies use the T-4 form to demonstrate to the public that the company is operating as a common carrier pipeline with eminent domain authority when, in fact, the RRC operating permit provides no evidence of that fact at all.”

“What was once just the voice of Texas landowners is now a national issue, with all eyes upon Texas and whether our Legislature will step up to repair this grossly flawed land condemnation process,” Crawford concluded. “I stand at the ready to continue shining a light on what’s really happening on the ground to Texas landowners as we protect our land, and we look forward to a positive outcome in our appeal.”

TransCanada has initiated construction of the southern segment of the Keystone XL pipeline along its 485-mile trek from Cushing to the Texas coast. TransCanada will pump Canadian tar sands crude or Dilbit to refineries on the Gulf coast.  The northern segment of the Keystone XL awaits approval by the State Department for its presidential permit.

In the meantime Enbridge, TransCanada’s Canadian competitor, has begun surveying for an additional twin line to the existing Seaway pipeline near the DFW area.  Both Enbridge’s 36-year old repurposed Seaway pipeline and the new twin line will carry tar sands from Cushing, Oklahoma to the coast.  The dual Enbridge lines are expected to exceed Keystone’s capacity with 850,000 barrels per day of tar sands crude.

Enbridge is currently responsible for the largest and most expensive onshore spill in history.  The Michigan spill occurred in July 2010 carrying tar sands crude through a 43-year old repurposed line in Michigan.  Two years and more than $850 million later, the spill is still being cleaned up on the Kalamazoo River.

“Landowner fights such as that of the Crawford family with TransCanada have sparked a new battle on a whole new front with another Canadian company,” Beving concluded.  “Many of us are now getting calls from landowners worried about Enbridge, which also plans to carry dangerous Dilbit crude through its pipelines from Cushing to the coast.”

Birdwell 512.463.0122
Campbell 512 463-0125
Davis 512.463.0110
Deull 512.463.0102
Duncan 512.463.0128
Ellis 512.463.0113
Fraser 512.463.0124
Huffman 512.463.0117
Nichols 512.463.0103
Rodriquez 512.463.0129
Selliger 512.463.0131
Uresti 512.463.0119
Zafferini 512.463.0121

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UPDATE: Public testimony will be taken on SB241 in committee on Tuesday, April 9, 2013. See hearing notice for details.

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It has been over a year since Rep. Dennis Bonnen wrote a letter to the Chairman Nelson of the Public Utilities Commission asking that the rules requiring mandatory installation of smart meters in Texas be changed “expeditiously” to reflect the permissive intent of his original legislation. While the PUC indicated in December that they would consider rule changes to allow for a smart meter opt-out mechanism for consumers, those changes are yet to materialize. Clearly, we Texans have a different definition of “expeditious” than does our PUC. In his letter, written in February of 2012, Rep. Bonnen requested immediate action from the PUC in order “that additional legislative action …not [be] required.” Well, you snooze you loose, PUC. Last week two bills were filled in the Texas Legislature to create a smart meter opt-out mechanism for Texans.

HB 1171, authored by Rep. David Simpson, allows “each customer scheduled to receive an advanced meter … to decline, without charge, to have the advanced meter installed; or allow each customer that is using an installed advanced meter to choose to have the meter removed, without charge.” Simpson’s bill also includes provisions making the distribution utility liable for any damage a smart meter may cause to a customers’ property and requiring all distribution utilities to inform their customers by mail of their right to opt-out of the use of advanced metering technology.

SB 241, authored by Sen. John Carona, states that for Texans who have not yet received a smart meter “the utility may charge the customer a reasonable fee for costs associated with the refusal of installation and with providing traditional metering services.” And for those who have a smart meter that they wished removed: “the utility shall remove the advanced meter; and may charge the customer a reasonable fee for costs associated with: removing the advanced meter;  installing a conventional meter; and providing traditional metering services.” Like, HB 1171, Sen. Carona’s bill requires notice by mail to all consumers informing them of their right to opt out, but unlike HB 1171, SB 241 does not include any language about liability of the utility for any damage caused by the meter. Additionally, this senate version of the bill requires that: “The amount of the fee for a customer who declines to have an advanced meter installed must be the same as that for a customer who chooses to remove an advanced meter. “

Here is a quick breakdown of the major tenets in the two bills:

While both bills create the opt-out mechanism for which we have been working, HB 1171 aligns closest to our recommendations (given in testimony before the PUC on August 21, 2012). HB 1171 has been referred to the House State Affairs Committee and SB241 is currently in Senate Business and Commerce Committee. Each bill currently only has one author. Please contact your legislator and ask them to support and/or sponsor these measures to create an opt-out for Texans.

For further reading on our work on this issue please refer to our blog post: Smart Meters: We Texans Are Pro-Choice.

For resources on how to contact your legislator please download our free guide, How To: Influence State Law.

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.

We Texans How To Guide: Influence State Law

Ladies and Gents of the great state of Texas: We are off to the races! The 83rd legislative session has begun.  Now, if you, like countless other liberty-minded Texans, were sorely disappointed in the “results” we got from our state house the last time our elected representatives gathered in Austin, then the questions is: What are you going to do differently this time to insure a different outcome?

“Insanity is doing the same thing over and over again and expecting different results” – Albert Einstein

Something is clearly missing from the formula in our state house. In the 82nd Session, we possessed what appeared to be the perfect formula for conservative policy:

Republican super majority + Republican Statewide Elected Officials + Proposed Conservative Legislation

Yet somehow that equation equaled dismal failure on the liberty front.  (See: Is This What Success Looks Like?)

cat·a·lyst [kat-l-ist]

1. something that causes activity between two or more persons or forces without itself being affected.
2. a person or thing that precipitates an event or change
3. a person whose talk, enthusiasm, or energy causes others to be more friendly, enthusiastic, or energetic.

We would argue that the missing variable in the equation is citizens, liberty-lovin, hard-workin’ Texans, pounding the halls of the Capitol along side the slick-suited lobbyists serving as catalysts for change in our state government.

The first step to being an effective catalyst is to be educated on the Texas legislative process. To that end, We Texans along with Texans for Accountable Government held a full day training session in December to equip everyday Texans with the tools needed to influence state law. If you were not one of the over 100 who joined us that day in Austin, all hope is not lost. We have compiled all the training resources from that event here for you to study, share and reference.

For an excellent foundational read, the most studious among you will want to start by reading the The Law by Frederic Bastiat.

Then for a crash course in how a bill becomes law, download the PowerPoint presentation: The Legislative Process by Jeff Wolverton of Texas 101 Consulting and the companion hand-out Texas Legislative Guide.

Now with a grasp on how a bill becomes law, learn how you can be a part of that process by downloading:

Getting Involved: Testifying- Tom “Smitty” Smith, Public Citizen

Getting Involved: Dialoguing- Linda Curtis, Independent Texans

How To Guide: Influence State Law -We Texans

If you are reading this blog right now, you have all the skills necessary (the ability to read and the access to the internet) to begin getting involved. But just in case you’re simply itching for more knowledge and information at your mouse-clicking finger tips, we’ve compiled the following helpful links and downloads for you:

Now get out there and get after it!

Texas State Representative John Otto (District 18) filed H.B. 553, the “Second Amendment Preservation Act,” on January 17^th.   “The Constitution was designed for times like these—when emotions run high and justice demands a response. But our Founders saw the wisdom in preserving our natural right of self-preservation and self-defense, and provided that our right to keep and bear arms shall not be infringed. My bill is designed to ensure that for Texans, at least, that will remain true.” ~ State Representative John Otto

The underlying problem is that he is focused on the wrong Constitution, but he is not alone.  Many, if not all representatives from Texas as well as other States, are actually hurting the founding principles of Federalism, Republicanism and limited government [when they introduce this sort of legislation]; not to mention State Sovereignty and individual liberty.  And although this bill, along with numerous other similar bills, has good intentions, it mistakenly gives sanction to what is known as the Incorporation Doctrine.

Representative Otto’s bill, perhaps unknowingly, supports extending the federal Bill of Rights to the States, which is simply wrong and can only end badly.  The language of this bill, by arguing in favor of applying the U.S. Constitution’s 2^nd amendment to the States, backhandedly supports Incorporation; the Federal Government’s position that it can extend the Bill of Rights to the States and create national laws affecting every State on issues such as prayer in schools, or having the Ten Commandments displayed in a State courthouse.  This truly undermines Federalism and argues in favor of Nationalism.  In simple terms; to argue the right to keep and bear arms, the Texas Constitution is as far as you need to go.

Here are few things we all need to know about gun control, State Constitutions, and the Bill of Rights.

1. The Constitution of the United States is a compact developed and ratified by the people of the several States to create a new Federal Government. It delegates strict, limited, and enumerated powers to the Federal Government, reserving ALL powers not delegated to the United States by the Constitution, to the States respectively, or to the people.

2. The Bill of Rights is a restriction on the Federal Government –ONLY– and the Supreme Court of the United States affirmed that understanding for over 130 years up until the 20th century, when the litany of progressive judges started to take over the judiciary.

3. States can regulate guns; the Federal Government cannot.   If you were indoctrinated in the public school system, this will sound crazy, but it is true.

State Constitutions such as New York’s have no clause protecting the citizens of that State’s right to keep and bear arms; none.  And in States that do protect the right to keep and bear arms, they still control regulation.  Texas is a good example.  The Texas Constitution reads:

Art. 1 Sec. 23. RIGHT TO KEEP AND BEAR ARMS. Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime.

4. If you believe that the Federal Government has the power to legislate gun control, prayer, or any other part of the Bill of Rights, across all 50 States, regardless of that State’s wishes, you are a supporter of the Incorporation Doctrine.

5. If you believe that the United States Constitution delegates enumerated and limited powers to the Federal Government and the individual States are sovereign and retain ALL remaining powers, you are an originalist, and we should all be originalists.

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ORIGINAL POST:

This post was written by our friends over at The Tenth Amendment Center

Introduced in Texas [this week], House Bill 553, is titled “The Second Amendment Preservation Act.”

The bill reaffirms the Second Amendment, as intended, and would nullify potentially anything from the federal government that contravenes in the State of Texas. It reads, in part:

…all federal acts, laws, executive orders, agency orders, and rules or regulations of all kinds with the purpose, intent, or effect of confiscating any firearm, banning any firearm, limiting the size of a magazine for any firearm, imposing any limit on the ammunition that may be purchased for any firearm, taxing any firearm or ammunition therefore, or requiring the registration of any firearm or ammunition therefore, infringes upon Texans’ right to bear arms in direct violation of the Second Amendment to the Constitution of the United States, and therefore, any such law is not made in pursuance of the Constitution, is not authorized by the Constitution, and thus, is not the supreme law of the land, and consequently, is invalid in this State and shall be further considered null and void and of no effect in this State.

The bill goes further than just affirmation of the Second Amendment. It requires compliance by by state and federal agents:

A person who is a public servant commits an offense if the person, while acting under color of the person’s office or employment, intentionally enforces or attempts to enforce any acts, laws, executive orders, agency orders, rules or regulations of any kind whatsoever of the United States government relating to confiscating any firearm, banning any firearm, limiting the size of a magazine for any firearm, imposing any limit on the ammunition that may be purchased for any firearm, taxing any firearm or ammunition therefore, or requiring the registration of any firearm or ammunition therefore.

The legislation specifies that the new law would apply not just to state employees, but federal ones as well.

”Public servant,” includes an officer, employee, or agent of the United States; a branch, department, or agency of the United States; another person acting under a contract with a branch, department, or agency of the United States to provide a law enforcement or security service; or any other person acting under color of federal law.

HB553 also provides for criminal penalties for a violation of the 2nd Amendment in the State of Texas

An offense under Subsection (b) is a Class A misdemeanor punishable by confinement for a term not to exceed one year, a fine of not more than $10,000, or both the confinement and the fine.

ACTION ITEMS

Texans can join the 2nd Amendment Preservation group to support this bill on Facebook:
http://www.facebook.com/groups/2ndAmendmentTexas/

If you have concerns about the federal government banning firearms, firearm accessories, or ammunition and would like to see this bill assigned to a committee and be up for debate on the house floor, please contact your Representative at this link.

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But does it make you sick enough to do anything about it?  Sick enough to ask whether we know the difference between policies that keep us free (and prosperous) and those that lead to poverty?

Ludvig von Mises, noted economist and philosopher, provides some particularly salient ideas for our consideration:

• Equality means no more and no less than equal treatment under the law – Poor understanding of this concept leads to the futile attempts to make sure everyone enjoys the same (equal) outcome.  “Nothing however is as ill-founded as the assertion of the alleged equality of all members of the human race.  Even between brothers there exist the most marked differences in physical and mental attributes.” Equality under the law means equal treatment under the law (and by the government).  “Whoever denies rights to a part of the population must always be prepared for a united attack by the disenfranchised on the privileged. Class privileges must disappear so that the conflict over them may cease.”¹

To boast that Texas is a business friendly state when we tolerate the distribution of tax dollars, dollars forcefully taken from our citizens, to select businesses who just happen to have the right political connections is the worst sort of deceptive trade and false advertising.  In fact, what has been created here in Texas is a very unfriendly business climate, one that screams, we’ll only treat you favorably if you’re making large political contributions to various politicians, “it’s pay to play, baby”.

• Government power is to be limited to protecting people and their property from aggression.  When government strays beyond that purpose, it ends by regulating and restricting down to the smallest detail.  So what you say? Those regulated things need regulatin’. vonMises rightly notes “All mankind’s progress has been achieved as a result of the initiative of a small minority that began to deviate from the ideas and customs of the majority until their example finally moved the others to accept the innovation themselves. To give the majority the right to dictate to the minority what it is to think, to read, and to do is to put a stop to progress once and for all.²

Perhaps more to the point, the fifth-century B.C. Chinese philosopher Mo-tzu once remarked that if someone can recognize an act of unjust aggression when it is perpetrated by one individual against another, but not when the same act is perpetrated by an organized group of individuals, such a person must be confused about right and wrong.³

Government has no business in economic development as it is being practiced today.  Government’s job is to protect people and property from aggression, to protect the innocent and punish the wrong doer.  Provide that level playing field for one and all and Texas truly will be a business friendly state.  Unfortunately, despite the oft seen Norman Rockwellian imagery extolling the virtue of small business, today the message from Texas screams, “pay to play, only the wealthy need apply”.

There is no state in the union that enjoys the diversity that Texas offers: in our people, in our heritage, in our natural resources and in our industry.  There is every reason that Texans should be the most prosperous in the country and yet as this article points out, Texas “has the third highest proportion of hourly jobs paying at or below minimum wage.”  And study after study shows Texas slipping on indexes measuring freedom and the prosperity that accompanies it, the most recent coming from the Cato Institute giving our governor (and thereby our state policy) a C for fiscal conservatism.⁴

Ezra Taft Benson, Former Sec. of Agriculture during the Eisenhower administration addressed the proper role of government, “Are there not, in reality, underlying, universal principles with reference to which all issues must be resolved whether the society be simple or complex in its mechanical organization? It seems to me we could relieve ourselves of most of the bewilderment which so unsettles and distracts us by subjecting each situation to the simple test of right and wrong. Right and wrong as moral principles do not change. They are applicable and reliable determinants whether the situations with which we deal are simple or complicated. There is always a right and wrong to every question which requires our solution.” (Albert E. Bowen, Prophets, Principles and National Survival, P. 21-22)  Unlike the political opportunist, the true statesman values principle above popularity, and works to create popularity for those political principles which are wise and just.   Read the rest of Mr. Benson’s remarks here.

No question, Texas needs political leaders who will value principle above popularity and who will work to create popularity for those political principles which are wise and just, lest we tumble down our own fiscal cliff.

¹ von Mises, Ludwig Liberalism in the Classical Tradition  German edition, 1927; latest English edition Copyright 1985 The Foundation for Economic Education, Irvington, NY. Translation by Ralph Raico. Online edition Copyright The Mises Institute, 2000.

²ibid

³Burton Watson, ed. & trans., Mo Tzu: Basic Writings (New York: Columbia University Press, 1963), pp. 50-51.

⁴ Edwards, Chris. ”Fiscal Policy Report Card on America’s Governors: 2012” Cato Institute, Oct. 9, 2012.