Which Constitution Am I Protected By?

[Gary Hunt]

Which Constitution Am I Protected By?

Do you really want the Federal Government
to protect you from your State Government?

Gary Hunt
Outpost of Freedom
November 19, 2013

"We have Constitutional Rights!"  "They have violated the Constitution!"  We hear such exclamations on a regular basis.  However, have we ever really stopped to consider just what we are saying?  Just what we are supporting?  Just what we have represented by those exclamations, which are really contrary to our best interest, and the intent of the Framers of the Constitution and government?

Recently, there was a rally in San Antonio, Texas.  The rally was called because a few weeks earlier, some "Second Amendment" advocates had settled down, armed in accordance with Texas law, on the sidewalk in front of a Starbucks coffee shop (Open Carry Texas harassed by SAPD).  Subsequently, a Come and Take It - San Antonio Rally was called, with no reference to the Second Amendment, though it did emphasize a phrase from that Amendment, "SHALL NOT BE INFRINGED".  Such a rally, however, will draw national attention, as it did.

The Rally drifted toward the Second Amendment, as a result of speakers such as Alex Jones, who went so far as to include other cities, around the world, in his desire to protect Second Amendment rights (Gun Owners Defy Tyranny, Defend Constitution at the Alamo).

To me, it was simply amazing that so many people came out in support of a "Federalist" form of government.  Yes, that's right!  They came out asking the federal government to intervene in, and take control of, their right to keep and bear arms.

"Well", you say, "Isn't that what the Second Amendment is all about?"  So, I will answer that question -- "Yes", and, "No".  Yes, if it is the federal government that you are dealing with.  However, a distinct and definite "No", if you are dealing with the state, and subordinate, governments.

Darn, that is tough to grasp!  I thought the Bill of Rights was to protect us from government assuming away those rights.  Well, yes, it is, but which government are we talking about?  The federal, or, the state, government?

Why would I go and say such a foolish thing?  We all know that we have Second Amendment rights:

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.

Well, this poses a rather interesting question.  So, let's look at the Texas Constitution.

Article I - Declaration of Rights:
§23.  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.

That sure doesn't read quite like the Second Amendment, it says nothing about ""shall not be infringed".  So why do we not accept the limitation imposed by the Texas Constitution?  We may not like it, but that is the way it is in Texas.  The federal Constitution was written only with regard to the relationship between the people and the federal, not the state, government.  The concern, and the reason for such separation, was that the Framers, and those that ratified the Constitution, did not want to relinquish any unnecessary power or authority to the federal government, except that which was necessary to allow that government to conduct the business of governing -- only -- the federal government.

Let's venture back to 1833, when the country was still young, and some of the Framers were still alive.  Chief Justice Marshall, in a Supreme Court decision [Barron v. City of Baltimore, 32 U.S. 243], gives us an explanation:

The [U. S.] constitution was ordained and established by the people of the United States for themselves, for their own [federal] government, and not for the government of the individual states.  Each state established a constitution for itself, and in that constitution, provided such limitations and restrictions on the powers of its particular government, as its judgment dictated.  The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests.  The powers they conferred on this [federal] government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily, applicable to the government created by the instrument.

So, each constitution, federal and state, creates a government and then binds that government to the provisions, as judgment dictated, granting power and authority, and reserving rights, to the extent of what was determined, at the state level, to be consistent with the will of the people of that state.

Going further in his explanation as to why the federal Constitution was limited, Marshall says:

Serious fears were extensively entertained, that those powers which the patriot statesmen, who then watched over the interests of our country, deemed essential to union, and to the attainment of those unvaluable objects for which union was sought, might be exercised in a manner dangerous to liberty.  In almost every convention by which the constitution was adopted, amendments to guard against the abuse of power were recommended.  These amendments demanded security against the apprehended encroachments of the general government-not against those of the local governments.  In compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed by the required majority in congress, and adopted by the states.  These amendments contain no expression indicating an intention to apply them to the state governments.

A review of the Preamble to the Bill of Rights will bear this opinion out:

The Conventions of a number of the States, having at the time of their adopting the [federal] Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the [federal] Government, will best ensure the beneficent ends of its institution.

Are we beginning to get the picture, yet?

Now, the Fourteenth Amendment provided a foundation for change, at least to some extent, though that is not the object of this discussion.  However, for those interested, there is an extensive study of the Fourteenth Amendment at The Fourteenth Article in Amendment to the Constitution - an Essay.

We can, however, see an instance of the conversion of authority from state to federal from a well known, though this aspect is too often overlooked, 1973 decision, Roe v. Wade [410 U.S. 113].  The decision hinges on the right to an abortion, though Justice Rehnquist, in his dissenting (disagreeing) opinion, provides insight, not to abortion, rather, to the limitations of federal power, when he says:

The fact that a majority of the States reflecting, after all, the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not "so rooted in the traditions and conscience of our people as to be ranked as fundamental".  Even today, when society's views on abortion are changing, the very existence of the debate is evidence that the "right" to an abortion is not so universally accepted as the appellant would have us believe.
To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment.  As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature.  By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion.  1)  While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today.  2)  Indeed, the Texas statute struck down today was, as the majority notes, first enacted in 1857 and "has remained substantially unchanged to the present time."
There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted.  The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.

Since the Supreme Court ruled on Roe v. Wade, we have heard one side call for the decision to be overturned, while the other side praises the "wisdom" of the Court.  What the Court did was legislative in nature, contrary to the intention of the Framers and the Fourteenth Amendment.  However, neither side objected to the Supreme Court's authority in dealing with the matter of abortion (have you found any mention of abortion in the Constitution?).

So, by acquiescence -- by projecting this un-granted power to the Supreme Court -- we have supported not the Union of States, under and by the Constitution, rather, we have agreed to make the federal government supreme in all matters concerning our lives (even our flush toilets).

In 1789, when the U. S. Constitution was ratified, it was the concern, in the states, that the Constitution would give the federal government too much power.  It was the state governments that insisted that there must be a limitation on the power granted to the federal government.  Those powers "reserved to the States respectively, or to the people" (10th Amendment), cannot be sustained, except by the will of the people, and their perseverance and support of their respective state and its constitutional power and authority.

Does this acquiescence, to such federal authority, by those who so support it and seek a reversed decision from the Supreme Court, make them Federalists, at heart?  After all, they have moved away, as far as possible, from any proposition that states, too, have powers protected by the Tenth Amendment -- the few that still remain.

 

This article can be found on line at Which Constitution Am I Protected By?