Tuesday, February 19, 2013 | 12 comments

The Second Amendment Preservation Act is Constitutional

By Connor Boyack

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Representative Brian Greene, in an effort to support the individual right to keep and bear arms, has sponsored House Bill 114, titled the “Second Amendment Preservation Act.” This bill upholds both the U.S. and Utah Constitutions, each of which declare that this right “shall not be infringed.” HB114 simply strengthens state code to stipulate exactly how that such an infringement will be dealt with.

Specifically, the bill:

  • affirms that it is the exclusive authority of the legislature to adopt and enact any and all laws, orders, rules, or regulations regarding the manufacture, transfer, possession, ownership, and use of firearms exclusively within Utah;
  • provides that any federal action which purports to impose limitations on firearms contrary to the Second Amendment of the Constitution of the United States, or the Constitution or laws of the State of Utah, is unenforceable in Utah;
  • creates a penalty for any enforcement of federal laws contrary to Utah laws or the United States or Utah Constitutions; and
  • allows the attorney general to defend state officers, employees, and citizens prosecuted under certain federal laws.

Critics have pounced on this proposal, claiming that it is unconstitutional to pass a law in violation of a federal statute. For their support, they point to the legislative review note on HB114, authored by a staff attorney, which appears at first blush to substantiate their concerns.

But this legislative note is incorrect and misleading, and therefore merits a response.

Does HB114 violate the Supremacy Clause?

Attorneys disagree all the time. It’s what they’re employed to do. Judges also disagree, often overturning lower judges’ decisions, or even reversing decisions made by judges in the same court. The lesson to be learned here? Simply because an attorney advances an argument does not make it true.

This is the case with the legislative review note, which begins by stating that Rep. Greene’s bill conflicts with the Supremacy Clause. The drafting attorney writes:

As drafted, these provisions raise issues relating to the United States Constitution’s Supremacy Clause, contained in Article VI, Section 2, of the United States Constitution, which provides: “This Constitution, and the Laws of the United States . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

Did you notice the ellipses? Properly used, ellipses allow a person to omit words from a sentence that are not necessary to understanding the full sentence. But the words omitted in the attorney’s citation of the Supremacy Clause are the most relevant words when discussing whether federal statute can trump state code. Here is the actual Supremacy Clause with the omitted words highlighted:

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.

Obviously, the language regarding treaties is not relevant to this issue. But leaving out the portion of the clause that specifies which federal laws are supreme is highly misleading to the legislators tasked with determining whether or not the pass the bill.

In fact, the omitted portion of this clause is the very reason HB114 exists at all! Many believe that federal gun laws are not made “in pursuance of” the Constitution, and are therefore unconstitutional. Therefore, state legislatures may interpose themselves between such unlawful mandates and their citizens to protect them from unconstitutional federal overreach. This is substantiated by a significant number of statements made in debates during the framing and ratification of the Constitution.

The legislative attorney’s incorrect interpretation of the Supremacy Clause, which relies upon omitting three important words from the text of the Constitution, was something that was actually considered by the framers of the document.  A small number of them proposed what would be known as the “Virginia Plan” for the Constitution, one of its primary parts being the authorization of veto power by the federal government over all state laws. That plan was not approved.

The important lesson here is that the Founders directly considered a proposal to make all federal laws supreme, as the legislative attorney has argued.  But that plan was rejected in favor of making supreme only those federal laws “made in pursuance of” the delegated, enumerated powers in the Constitution.  That was the philosophical birth of Article VI, the so-called Supremacy Clause.

This issue was likewise a concern for many during state ratification conventions of the Constitution. Many were worried that the new national government would overtake all domestic matters, leading the states to become powerless. The rebuttals to these concerns from the proponents of ratification helps us understand what the clause’s intent actually was. For example, William Davie, a delegate to the Constitutional Convention from North Carolina and proponent of the resulting document, rejected attacks on the Supremacy Clause by arguing:

This Constitution, as to the powers therein granted, is constantly to be the supreme law of the land. Every power ceded by it must be executed without being counteracted by the laws or constitutions of the individual states. Gentlemen should distinguish that it is not the supreme law in the exercise of power not granted. It can be supreme only in cases consistent with the powers specially granted, and not in usurpations [emphasis added].

Future Supreme Court justice James Iredell of North Carolina agreed with Davie’s point, stating that, “[The supremacy clause] is supposed to give too much power, when, in fact, it only provides for the execution of those powers which are already given in the foregoing articles.If Congress, under pretence of executing one power, should, in fact, usurp another, they will violate the Constitution [emphasis added].”

Rep. Greene himself has responded to this concern regarding his bill in an op-ed in which he writes, “To conclude that the anticipated actions of the federal government will be entitled to supremacy status via the Supremacy Clause would require a blatant and intentional disregard of the abundant evidence to the contrary. Moreover, those of us who have the privilege of serving our fellow citizens are duty bound to preserve, protect and defend the fundamental rights of those who elected us. The bill I have proposed will do just that.”

The point here is clear: only federal laws which are consistent with the Constitution’s enumerated powers may invalidate a conflicting state law. In the case of gun control, the federal government has no authority to tell individuals that they cannot own and use weapons of a certain type. This brings us to the next point.

Intrastate vs. interstate commerce

The legislative note further argues that, “While this legislation limits itself to wholly intrastate conduct, it is not beyond the reach of Congress’s power under the Commerce Clause of the United States Constitution.” Let’s look at whether that is true.

The reach of Congress’s power can only be justified to the extent that is is based upon its constitutionally-delegated powers. The Commerce Clause states that, “[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” So what does it mean to “regulate”?

Whether it means to micro-manage, as has recently been concluded in numerous Supreme Court cases, or to “make regular” (ensuring commerce flows freely), as some have argued, is ultimately irrelevant. This clause is restricted both by the prevailing colonial definition of “commerce,” which was mercantile trade and not anything indirectly connected to it, as well as being limited to commerce “among” (and not within) the several states.

In other words, even if Congress had been constitutionally conferred the authority to prohibit or mandate certain forms of commerce (which is a highly contestable point), they could only do so when such commerce moved (or was clearly going to move) from one state to another. It is illogical to conclude that the framers of the Constitution generally consented to a national government which could regulate, mandate, or prohibit economic activity within a family or community or state.

As the legislative note explains, however, there is “long-standing interpretation” by the Supreme Court which has allegedly authorized Congress to micro-manage any economic activity, whether it be interstate (“among the several States”) or intrastate (wholly within a single state). The primary case used as precedent by proponents of this argument (also cited in the note) is Wickard v. Filburn (1942).

Wickard grew wheat for consumption only by his family and livestock, but the court opined that wheat locally consumed could, in theory, have been sold in interstate commerce—and so when Wickard retained his wheat instead of selling it, aggregate output and pricing in interstate commerce was affected. FDR’s court therefore concluded that Congress could pass a law regarding any form of commerce at any level.

Justice Clarence Thomas dissented from the majority of his peers in a recent U.S. Supreme Court case where a discussion of Congress’ power over intrastate commerce was key. Though it dealt with marijuana specifically, the issue of whether the federal government can prohibit an item grown or manufactured in one state, which then remains in that state, applies equally to firearms—as Thomas himself noted:

If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress’ Article I powers – as expanded by the Necessary and Proper Clause – have no meaningful limits. Whether Congress aims at the possession of drugs, guns, or any number of other items, it may continue to “appropria[te] state police powers under the guise of regulating commerce.”

Writing further, Justice Thomas points out the logical problems with believing that Congress can micro-manage intrastate commerce:

If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison’s assurance… that the “powers delegated” to the Federal Government are “few and defined”, while those of the States are “numerous and indefinite.”

Indeed. Because gun control, like all economic regulation, interferes with the free flow of commerce, then it is actually antithetical to the original intent of the Commerce Clause. The federal government’s constitutional role is only to facilitate commerce, and not prohibit it.

In short, the federal government has not been constitutionally delegated any authority to micro-manage commercial transactions which exist entirely within a single state. The Supreme Court may have opined differently, but they are not the final arbiters of what the Constitution says—the people are. Too much evidence stands in opposition to the conventional wisdom that what the Supreme Court says is the ultimate and irrefutable declaration of a law’s constitutionality. Of the dozens of quotes which could be shared for support, consider the following from Thomas Jefferson:

To consider the Judges of the Superior [Supreme] Court as the ultimate Arbiters of Constitutional questions would be a dangerous doctrine which would place us under the despotism of an oligarchy. They have with others, the same passion for party, for power, and for the privileges of their corps—and their power is the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the Elective control. The Constitution has elected no single Tribunal. I know no safe depositary of the ultimate powers of society but the people themselves.

The people themselves, through their state legislatures, have, can, and will continue to oppose federal encroachments. James Madison likewise wrote that when the federal government imposes a mandate without constitutional authority, “the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.”

This is the entire point of HB114, and one which is not so easily refuted as the legislative note might suggest. Nothing in the bill contradicts the Commerce Clause, and Wickard and related court cases must finally be overturned and exposed for the logically empty justifications of federal aggrandizement that they have historically proven to be.

A chilling effect

Another concern raised in the legislative note explains that, “The provision making the enforcement of federal firearms laws a third degree felony would likely be held to have a chilling effect on federal officers’ authority.”

Like stating that the rain is wet, this self-evident statement does not convey new information. Obviously, the point of criminalizing the enforcement of an unjust, unconstitutional law is to place a “chilling effect” on those who would aim to enforce the “law” in question. That is the entire point of providing for penalties to begin with.

But the “authority” question is the point that needs addressing. The legislative note augments its argument by citing an 1880 Supreme Court case which states, in part: “If, when thus acting, and within the scope of their authority, those officers can be arrested and brought to trial in a State court, for an alleged offence against the law of the State. . . the operations of the general government may at any time be arrested at the will of one of its members.”

Of course, the question at the heart of this whole matter is whether federal officers are duly authorized to enforce gun control laws. They can only be duly authorized if the law conferring upon them the power is itself legitimate and constitutional—and in this case it is not. Therefore, the officers would not be acting “within the scope of their authority” and should be rejected when attempting to enforce a mandate that is not just.

Imagine if federal law stated that due to budget cuts, residents of each state would be required to provide housing to members of the National Guard from their state. This absurd overreach would raise the eyebrows of many, and rightly so. It directly contracts the Third Amendment to the U.S. Constitution which provides that, “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”

If the homes of non-compliant Utah citizens were being confiscated due to their unwillingness to obey, should the state legislature impotently stand by and do nothing? Should the lives of dozens, or hundreds, or thousands of Utahns be upended while waiting for federal courts (part of the same government enforcing the “law”) to resolve the issue?

And if a majority of the justices on the Supreme Court opine that the action is constitutional, due to some technicality or circumstantial exception, despite the clear text of the Third Amendment, should the elected officials in Utah do nothing? Surely not.


Perhaps no better conclusion exists regarding HB114 than the one written in the legislative note itself:

In conclusion, this legislation purports to limit the reach of the federal law and is inconsistent with existing federal firearms provisions.

That’s the point of the bill—to limit the federal government’s ability to regulate and thus restrict the individual right to keep and bear arms. HB114 is indeed “inconsistent” with existing (and proposed) federal firearms provisions, because such provisions are not constitutional and violate this right.

Whether HB114 will be considered by a judge to be unconstitutional, based on bad precedent, is beside the point. The bill itself is quite constitutional, and will allow Utah to lead out on challenging the federal government’s decades-long encroachment on state powers based on flawed interpretations of the Supremacy and Commerce Clauses.

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About the Author

Connor Boyack is president of Libertas Institute. He is the author of several books on politics and religion, including the Tuttle Twins series for children.

Joseph Sorensen
Joseph Sorensen

HB114, the final of the three big "gun bills" hit the floor today, and like the others it suffered.  In this case however the implications extended far beyond 2nd Amendment protections.  The proceedings can be watched at: 




Some wonderful principles argued by a couple of the legislators, but ultimately these did not win the day.


I sent the following e-mail to all the legislators:



Please, this is sincerely devastating.


HB114 has been hijacked and amended (House Floor Amendment 3) into an egregious burden upon the very Utah citizens it was intended to protect.  The 2nd Amendment is only one of the hostages.


Prior to the amendment, the burden of demonstration lay on federal officers; now the burden is laid upon Utah citizens.


The good sponsor frightened his good colleagues with a discrete scenario involving a state officer who, apparently unable to remember and comprehend a list of state and federal firearm laws, would somehow be relieved by having to remember the same list of state and federal laws and which of these had been ruled on by courts and how.


This proposed solution does not alter the “in the spur of the moment, in heated battle” situation, it just affirms the superior position of the federal officer, neutralizes the state officer, and leaves the Utah citizen utterly alone to protect her presumed right to self-defense.


Here are scenarios, pre and post amendment, simply but more fully played out to explore the assumptions of the amendment's sponsor:


Scenario prior to the amendment: A federal officer tries to enforce a federal law that a state officer believes is in conflict with Utah law, and the state officer steps in.  The federal officer acquiesces and later sues, backed by the Federal government, or he does not acquiesce and (really?) a firefight ensues between federal officers and state officers who are probably relatively equally matched (balance of terror/mutually assured destruction).  In the subsequent court hearing the federal government sues regarding its officer being impeded.  And now, at the risk of impeding a federal officer's duty the question is addressed.


Scenario now: A federal officer tries to enforce a federal law that a Utah citizen believes is in conflict with Utah law.  The Utah officer does not step in.  The citizen acquiesces and later sues, bearing the burden herself, or she does not acquiesce and a firefight ensues between federal agents and a Utah Citizen.  In the subsequent court hearing the citizen must fund a case to prove that her rights were infringed.  And now, at the risk of depriving a Utah citizen of her rights, the question is addressed. 


The amended bill destroys the protection that was originally intended for the Utah citizen and demands that before protection will be offered a Utah citizen must risk life, liberty, and property to make a case.


Perhaps more disturbing was the reasoning, beyond the scare tactics, and the intent that was expressed by the amendment's sponsor.


It was argued that, "We have to wait until our courts decide what the law is and then we move forward and act."  It was suggested that this accords with Rule of Law and that the answer to those who might worry about the court's decision is to, "make sure that you get your chosen Presidential candidate elected and make sure you get your chosen Supreme Court justices appointed to our U.S. Supreme Court because that is ultimately where the buck stops."  What?!?


First of all, legislators "decide what the law is."  I know this fact was challenged by the unbelievably early Marbury v. Madison decision, but nothing can change the fact that law is legislated -- borne by (look up the etymology) legislators.  Courts "decide" cases, which laws a case calls into play.


Second, that is not Rule of Law, it is Rule by Law (what the sponsor referred to as Rule by Force): the arbitrary rule of those who are in power.  I have spent the past year in China, and there is no mistaking, a society where the buck stops with the Party in power is definitively a society based on Rule by Law.  This is not our system.


Our system, Rule of Law, embodies the principle of equal application, and in this regard there is perhaps no more telling institution than the one that HB114 considers--the citizen's right to bear arms.  And here is the BUCK: In a Rule of Law society, where laws apply equally to all, regardless of status or position, no prohibition on arms can apply to the people that does not also apply to officers of the people.  


That is right, civilians must be allowed to carry any weapon that a soldier is allowed to carry, otherwise laws apply differently and Rule of Law does not exist.  This is by definition, common sense, and perhaps the institution that throughout history has set societies apart as free or tyrannical.  When a ruling body is able to protect its rule because it has access to arms that it forbids citizens from having, this body is above the law, and the society suffers under Rule by Law.  There is no opinion here, no substantive debate, this is the "thin," procedural definition of Rule of Law.


The 3rd amendment to HB114 does not support Rule of Law.   The system portrayed by the good sponsor is not Rule of Law.  At best it is Rule of Lawyers, at worst it is Tyranny (the ruling body makes laws that it does not abide), by definition.  


Protection of Utah citizens was subverted.  Rule of Law was distorted.  The fundamental value of legislators was called into question. 


The majority of you agreed!


HB114 surely is a federalism bill, and the Utah House of Representatives has spoken firmly against federalism.  If this act and our distorted thinking are not repaired, we are surely on the road to the "Rule of Force" that the good representative from Heber was trying to avoid.


Please, what will you do about it?


This absolutely has become a statement by the Utah Legislature; its hesitation to stand up for Utah has been clearly stated.  Please STAND UP.


If it can't be repaired, please don't allow HB114 to be enacted.  In current form it does more damage than good by implying the opposite of its intent, that until a court rules, Utah citizens have no defense, and that state officers shall support contradictory federal laws.  At least without such a statement the uncertainty leaves Utahns free to STAND UP in defense of their rights.



Joseph Sorensen, Utahn


Joseph Sorensen
Joseph Sorensen

HB114 will be addressed again in committee on Monday.  Be there, or be aware; your freedom is in danger.  Other bills regarding the right to bear arms are being similarly held up, stripped, and even traitorously transformed:

(I also posted the following on the billboard post.)  


Today a bill intended to protect rights related to the 2nd Amendment was transformed into a blatant violation of those same rights.  During the Feb. 28 House floor-session HB268 was un-circled, amended, effectually reversed, and passed.  This bill that initially appeared to protect a gun bearer from charges of disorderly conduct is now going forward as an infringement on the right to openly carry.


The bill made it through committee after legislators received mass e-mails urging their support of an amended version of the bill.  The amended version removed language that obviously infringed a persons right to carry and replaced it with language that subtly and more definitively restricts the right.  I’m assuming that this subtlety was not pointed out in encouragements to forward the mass e-mail support. 


On the floor the bill was further amended to clarify the restriction.  In response to concerns that this bill still permitted “offensive” firearms to be carried in public places, the sponsor of the bill refuted this idea and expressly confirmed that the bill effectually prohibits the carrying of un-encased firearms in public places.  In effect the bill will outlaw the open, visible carrying of anything but a handgun.


Even those who agree, should be concerned by the deceptive way this has been achieved.  I’m guessing most citizens who supported this bill last week don’t realize how it has been transformed, and that many would no longer support it if they did.


The problem with bills that violate rights protected by the Constitution is that any recourse will likely further diminish freedom.  This is in accordance with early arguments against a Bill of Rights, which suggested that if we start trying to explicitly enumerate freedoms we implicitly deny freedom regarding anything not explicitly addressed.  By saying that people cannot be charged with disorderly conduct simply for carrying an “encased firearm” HB268 implies that carrying any un-encased firearm is disorderly.  Again, the sponsor of the bill confirmed that this is exactly what it effects.


Sadly if HB268, assuming it is signed into law, is ever challenged by an appeal to the 2nd Amendment now the Utah Supreme Court is bound, and rightly so, by the provision in the Utah Constitution which allows infringement on the right to bear arms.  Even worse, recourse by an appeal to the U.S. Supreme Court would make the issue federal and binding either way on States taking away the States’ ability to make its own decision regarding firearms. 


As so often happen when we try to address issues via government, HB268 in a supposed attempt to protect freedom has diminished it. Often leaving things relating to freedom unsaid is a million times better than trying to define them.  When freedom is enforced it is not freedom.



Nicely done. I've been briefing Pennsylvania legislators on the exact same issues in support of HB 357.


@theleftshow - @cboyack says it all "The lesson to be learned here? Simply because an attorney advances an argument does not make it true."


@cboyack @libertasutah waste of time as the US Constitution is not going anywhere and if it does words on paper will not help. #revolution


@cressman @mwbowler Obviously. The article I linked to refutes the legislative note. One attorney's opinion is not definitive.


@cressman @cboyack Heller & McDonald pushed back against that argument. I support continuing that fight.


@cboyack @mwbowler I guess we’ll have to wait to see who’s right: the legislature’s attorney or your blog.


  1. […] legislature’s attorneys explained why they felt the bill would be held unconstitutional, they completely omitted the very portion of the Supremacy Clause that suggests otherwise, and implicates the legal strength […]