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Sat, Sept. 21

Letter: Wikipedia not a great source site for serious study

Editor:

A comment offered in response to an article concerning Yavapai County Sheriff Scott Mascher’s confirmation that he would refuse to ‘participate or cooperate with any unconstitutional order that will infringe upon our Second Amendment rights’, sought to discredit the legal efforts of some of our state and local officials on the basis of Article 6 Clause 2 of our US Constitution.

The commenter sited Wikipedia as their source. While Wikipedia is a fun tool for cursory examination of a variety of topics, it is not a great source site for serious study and will often result in a failing grade at the college level if used to substantiate pretty much anything. Most college professors hate it, and grade accordingly. On an issue such as this a person is far better served by investigating legal and constitutional summaries and recognized legal journals.

As was pointed out in that comment, ‘The Supremacy Clause only applies if Congress is acting in pursuit of its constitutionally authorized powers. Federal laws are valid and are supreme, so long as those laws were adopted in pursuance of-that is, consistent with-the Constitution.’

If the Supremacy Clause were a blanket amnesty granting federal immunity from all state regulation, states would possibly be prevented from taxing the income of federal employees, this is however, an idea rejected by the Court in Graves v. New York ex rel. O’Keefe in 1939. The current interpretation can perhaps best be found in the decision of the Court from North Dakota v. United States in 1990, “..state regulation is invalid only if it regulates the United States directly or discriminates against the Federal Government or those with whom it deals.”

Also note this opinion from Gary Lawson, Professor of Law at Boston University School of Law, “While the federal government can prevent states from interfering with federal operations, whether through taxes or otherwise, that does not necessarily mean that the Supremacy Clause is the basis upon which Congress exercises its power to protect federal operations. The valid exercise of any one of Congress’s enumerated powers can constitute the constitutional source of a statute that effectively preempts a state law. In particular, the Necessary and Proper Clause would be a vehicle for a statute that explicitly disables state law from operating in an area of federal concern. Thus, for an explicitly preemptive statute to be constitutional, it must be “necessary and proper for carrying into Execution” some enumerated federal power, subject, of course, to the constitutional limits of the Necessary and Proper Clause itself.”

It is reasonable then to assume that certain State laws or decisions regulating, or choosing not to regulate firearms, would preempt federal statutes on the basis of the Second Amendment’s prohibition against Congress infringing on a citizen’s right to keep and bear arms, so long as those state regulations or laws uphold the language and principles of the Second Amendment its self. Infringing on the right to keep and bear arms is not a “valid exercise of any one of Congress’s enumerated powers”. As noted by a political writer for Examiner.com, Duane Sipe, “.. With a full understanding of Article 6, Paragraph 2, the Second Amendment might better be interpreted as “the right of the people to keep and bear arms shall not be encroached upon in any way by any national, state, or local legislative act, or constitutional language. period!”

The commenter was correct, ultimately, under the Supremacy Clause, it is up to the courts to figure out whether or not state and federal rules are in conflict. That is not however a bar to the States attempting to maintain a degree of sovereignty, in fact I would hope the States would challenge federal supremacy at every turn, forcing the fed to prove its case in court where ever possible, it’s what keeps our system healthy and honest.

And for those who fear that the Supremacy Clause gives the fed too much power in the arena of treaties, understand that the verbiage does NOT mean that treaties are the supreme law if they run afoul of our constitution. The Supreme Court has already clearly indicated no treaty approved by the Senate, and no executive agreements entered into through the President’s authority can create obligations that infringe upon our Constitutional guarantees as are found and protected in our Bill of Rights. See the opinions of the Court in Reid v. Covert in 1957.

I applaud Sheriff Mascher for honoring the obligation of his oath to ‘Uphold and Defend’ our Constitution. His decision as it applies to the Second Amendment is supported by case law and is in keeping with the best traditions and spirit of common law. Those who would call him a hypocrite for not applying the same policy toward other State Statutes are missing the point of the Constitutional nature of the principle he is standing on. There is no hypocrisy on display here, just sound moral and legal judgment, exactly what he was elected for. His decision, and the decision of a growing number of County Sheriffs nationwide, will ultimately, if necessary, be put to the test in court. I believe they will win out in the end.

David Gordon

Cottonwood

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