The Way of the Gun: Cruz Talks to NRA; Lege Ignores Supremacy Clause

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For a group allegedly committed to originalism, first principles, and tri-cornered hats, the Tea Party and its acolytes aren't even going two for three.  Haberdashers, however, you are in luck.

In the shadow of a tragic shooting in Terminal B of Houston's George Bush Intercontinental Airport, the National Rifle Association held its annual convention in Houston. According to the Texas Tribune, the NRA convention saw Sen. Ted Cruz challenge Vice President Joe Biden to a debate on gun control and crime, and Gov. Rick Perry lobby for guns because “we believe in the God-given right for people to have peace of mind to defend themselves and their family.”  Because on the eighth day, God created firearms. Originalism, indeed.

To see how all this misfired this weekend, go below the jump. Closer to home in Austin, however, actual gun legislation substituted for rhetoric, as the Texas House Saturday moved forward on HB 972 and HB 1076,passing both to engrossment.  HB 972 allows universities in Texas to permit firearms on campus, and contains an indemnity clause.  The indemnity clause prevents shooting victims from holding liable for damages the universities that opt to permit firearms on campus in case of a shooting.  Presumably, the estates of victims – if the shooting is fatal – are similarly barred.  Also insulated from liability are handgun instructors.

HB 1076 throws more red meat to the base, prohibiting local political subdivisions in Texas (e.g.: counties, cities, and the like) from enforcing federal gun laws passed after January 1, 2013, or enacting and enforcing regulations and ordinances which are similar to federal gun laws.  Any city, county, or other local, political subdivision which violates the statute, will lose state funding the following fiscal year.  Further, these political subdivisions will be subject to suit.  

Rep. Lon Burnam asked the obvious question – how much will these suits cost?  He received no answer.

Rep. Chris Turner attempted to amend the bill to stop the use of state money when the state is inevitably sued by the Federal government.  That amendment was stricken.  

As its rhetorical (and legal?) base, the bill uses an understanding of the U.S. Constitution, and specifically the Tenth and Ninth Amendments, as they were understood in 1845.  Whether they are creating a new subset of originalism to undermine Tea Party brethren or setting up the federal government for a fraudulent inducement claim is unclear.  However, the implicit purpose of the bill – to get federal hands off our guns – is frustrated by multiple things, not least of which is the Constitution.

As Chris Turner brought up, there is the issue of the Supremacy Clause in the U.S. Constitution.  

It reads:

“This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”

It's a high stakes game of paper, rock, scissors.  If federal law and Texas law come into conflict, federal law trumps. Every time.

While the federal government generally cannot conscript state and local governments to act as its agents and enforce its laws, if a state or local political subdivision opts to do so, or enact a law which is entirely consistent with the federal law, it can do that.  A state government cannot step in and penalize them for it.  

Then, there's the practical enforcement issue.  We're seeing it with health care exchanges , and now we may see it with firearms regulation.  If the state fails to act, or affirmatively moves to prevent action, the federal government will step in and act for them to the extent the law allows.  As we've just seen, the law gives them fairly wide latitude to act, leading to the perverse result that by acting to keep the federal government “off our guns” the Texas House is actually inviting the federal government to entirely control and regulate “our guns.”

For all the rhetoric and legislation coming out of the Texas House, better friends the federal government never had.  


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  1. Tomball1978 on

    Supremacy Clause
    The Supremacy Clause does not give the Federal Government carte blanche to pass any laws, which the states must then follow. If the law passed is made “in pursuance thereof” meaning made in accordance with the Constitution then the Supremacy Clause applies. If the law is not made in pursuance of the Constitution then the supremacy clause does not apply. Alexander Hamilton, who was himself a proponent of a stronger Federal government, said the following:

    “If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers intrusted to it by its constitution, must necessarily be supreme over those societies, and the individuals of whom they are composed…. But it will not follow from this doctrine that acts of the large society which are NOT PURSUANT to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such. Hence we perceive that the clause which declares the supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a federal government. It will not, I presume, have escaped observation, that it EXPRESSLY confines this supremacy to laws made PURSUANT TO THE CONSTITUTION.”

    Alexander Hamilton, The Federalist, No. 33

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