‘Gimme Shelter’

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The New York Sun

One thing that comes to mind as I travel the country to talk about the Constitution is the lyrics from the Rolling Stones song “Gimme Shelter”:

The floods is threat’ning
My very life today
Gimme, gimme shelter
Or I’m gonna fade away

For today it seems that all over the country government officials and ordinary citizens alike are reacting to the expansion in power of the federal government by turning for shelter to the Constitution.

Here in Salt Lake City, Utah, where this column is being written, the newspapers are lit up over the State-Made Firearms Protection Act, which would give Utah, as the measure is characterized by a columnist of the Salt Lake Tribune, Peg McEntee, the sole right to regulate firearms manufactured and sold for in-state use. “The idea,” says Ms. McEntee, “is to claim the state’s rights under the Ninth and Tenth Amendments of the U.S. Constitution.”

Or, to put it another way, the state is seeking the shelter of the Constitution against the danger that the federal government will come in with national legislation to regulate firearms. It fears that Congress might try to use its powers to regulate commerce among the states to enact federal legislation to restrict guns and ammunition in Utah. It wants to mark the point that if the guns are made and sold in-state for in-state use, then the federal government lacks constitutional authority to impose restrictions.

The shelter it is seeking is part of the Bill of Rights. The 9th Amendment states that the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. The 10th, the last article in the Bill of Rights, states that powers not delegated to the Untied States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

In Utah, the State-Made Firearms Protection Act, which this week cleared the state Senate by a wide margin, is being criticized by some as a mere “message bill” that could, as Ms. McEntee reports it, “land the state in a costly legal battle.” But others reckon it’s a message — and a principle — worth fighting for. One state senator, Mark Madsen, is quoted by Ms. McEntee saying, “What’s the cost of fighting tyranny?”

Senator Margaret Dayton introduced the bill in Utah’s upper chamber with a speech that cited, among things, the case of Roscoe Filburn, the hapless farmer from Indiana who, under President Franklin Roosevelt’s Agricultural Adjustment Act, ran into legal trouble for growing wheat for his own consumption on his own farm. The Supreme Court upheld the action against him using the interstate commerce clause that Mrs. Dayton is seeking to escape via the State-Made Firearms Protection Act.

States passing their own laws to block the federal government from reaching in where it shouldn’t has a noble tradition, which was laid down as far back as the early years of the republic, when President Adams and the Federalists in Congress passed the Alien and Sedition Acts, which would have, among other things, made it illegal to criticize the president. It was a situation that might seem made to order for a First Amendment case before the Supreme Court. But the Supreme Court was controlled by the Federalists.

So two states — Virginia and Kentucky — took matters into their own hands, passing two of the most famous acts of state legislation in American history, measures now known as the Virginia and Kentucky Resolutions. In writing the Kentucky Resolution, Thomas Jefferson cited the shelter of the 10th Amendment. The resolution stated that the Alien and Sedition Acts, and other measures of federal over-reach, were, in Kentucky, “altogether void, and of no force. . . .”

Virginia’s resolution, which was written by James Madison, was similar. And the struggle between the states and the federal government has simmered ever since. In the early 1830s, South Carolina passed a measure nullifying federal tariffs, precipitating a Class A crisis of federalism. It must be said that in some cases, most notably slavery and race relations, the federal government has held the moral and constitutional — and, eventually, political — high ground.

That’s not the case in the current maneuvering, at least not in the view of millions. In the case of the in-state firearms laws, the breadth of the movement is astonishing, as can be glimpsed on the Web site of the firearmsfreedomact.com. Its home page displays a map of the number of states that have passed or are considering or intending versions of the act designed to shelter firearms freedom under the 10th Amendment. It also offers an update on the state of play, including a motion just this month by the federal government to dismiss a lawsuit to validate the in-state firearms law of Montana.

Firearms protection is not the only issue in which states are seeking safety in the Constitution. In some states, legislators are debating whether to take shelter from the federal legal tender laws, via provisions for the use within states of something called “electronic gold currency.” This, involving contracts based on gold, relies on Section 10 of Article One of the Constitution, which prohibits states from making anything but gold and silver Coin a Tender in Payment of Debts. However modest a movement electronic gold currency might be at the moment, it represents a turn, at a time of crisis, toward our constitutional bedrock.

In Los Angeles during a recent speech on the Constitution, I was asked what one should do in the face of the enormity of the scale of federal over-reach today. My answer was to eschew cynicism and, in addition to political action, to look to the Constitution and study its plain language and see what rights are vouchsafed in it. That is what is already happening here in Utah and in scores of other states around the country in the face of the expansion of power in Washington.

Mr. Lipsky, founding editor of The New York Sun, is the author most recently of “The Citizen’s Constitution, An Annotated Guide,” published by Basic Books.


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