McDonald v. Chicago: The Great Misunderstanding Of State Sovereignty

One of my highly-esteemed colleagues, Wilton Strickland, who is an author, columnist, attorney in Florida and Montana, magna cum laude graduate of the college of William and Mary law school and a fond friend of liberty accurately described a major problem in America relative to restoring freedom in the States in his recently-released article entitled, Staying Away from the Federal Courthouse. In this article, Strickland rightly identifies as a serious error in political judgment our using the federal government to enforce “freedom” against the States, as though freedom can long exist at the elimination of state sovereignty. The supposed “victory” in the recently-decided McDonald v. Chicago case goes to the core of this issue and illustrates, yet again, that the U.S. Constitution operates to eliminate state sovereignty and to cement federal supremacy, the dreadful results of which we see more keenly and feel more obviously every day.

In this case, the U.S. Supreme Court opined that the fourteenth amendment (which was ratified only three years after the War Between the States under not-so-favorable conditions of the Southern states and which supposedly created national citizenship for all citizens of the States) nationalizes the second amendment such that all the States are bound to the federal government’s enforcement of those limitations. In other words, the federal government was supposedly given the power to ensure that all the States not deprive their citizens the “privileges and immunities” of the constitution. In essence, the States would have no sovereignty regarding this subject matter to the extent the federal government denies them permission, or any other matter that the federal government deemed “incorporated” into the federal constitution through the fourteenth amendment. This political application is a serious error and its consequences contradict the meaning and purpose of creating a federation of states and of separating state and federal powers. Literally speaking, there is no way that we can “get back to the constitution” where the application of the fourteenth amendment exists in this manner, not to mention the myriad of other reasons we will never “get back to the constitution.”

I acknowledge right off the bat that my view in this article is not likely in the majority of “conservative” groups, especially when it comes to a matter that has recently favored their “conservative” view. But that is all the more reason to express what I believe is the truth of this matter, for it goes to the very heart of freedom’s future and without an understanding of what jurisdiction, sovereignty and limitations of power mean, freedom will never be restored and will continue to suffer. Furthermore, I acknowledge that for what I am proposing to be the correct form of government to take place, the States must revolutionize the way they handle their politics, especially their relationship to the federal government. I also admit that not all of the States in the union will do this. In fact, maybe only a small percentage will, but the people living in those States must capture this vision for freedom to prosper in their State.

Ironically, most conservatives who praise this “gun-rights victory” also claim that the only way freedom will be restored is if we “get back to the constitution,” not recognizing that the constitution of 1787 and the constitution of 1868 and the constitution of 2010 do not closely resemble each other, not even considering what the Anti-Federalists warned of the U.S. Constitution. This simply shows that their understanding is misguided, incoherent and conflicted. On one hand, they praise a “supreme law of the land” that nationalizes a matter which the constitution of 1787 originally and purposely left to the states in a federal form; but on the other, they complain that the federal government is too intrusive in our lives and would admit that the fourteenth amendment (of the constitution of 1868) has a large role to play to that end. They hate Peter when he robs them to pay Paul, but they love Peter when he robs Paul to pay them. This approach to federal politics does not produce freedom.

Let me make this abundantly clear: today, the federal constitution is no longer federal, but is national in its character and nature. Ever since the fourteenth amendment was “ratified,” the federal government has become more increasingly the national supreme government at the expense of state sovereignty and the tenth amendment. It matters not that the federal government appears to be doing a good thing. Their power is obtrusive, encroaching and limitless, all through the use and instrumentality of the constitution.

Freedom is not victorious when the federal government obtains more power and control over the States through the use of a constitution that was supposedly designed to leave to the States all powers not delegated to the federal government and not expressly waived by them. The tenth amendment is as integral to the meaning of the constitution as the second amendment, if not more so; yet it is swept aside. Those who opposed the U.S. Constitution in 1787 did so based upon the conclusion that the U.S. Constitution created a national form of government and all but eliminated the sovereignty of the States. They were apparently more astute in their assessment of the U.S. Constitution’s future than were the Federalists. They did not base their opposition to the constitution upon the fear that the States would retain too much power and thus would potentially deprive their citizens of fundamental rights.

The States had their own constitutions (and still do) to secure the blessings of liberty. In fact, Illinois’ state constitution protects the right to keep and bear arms without reference to the U.S. Constitution: “Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed.” Everything not delegated to the federal government was deemed the inherent right of the States regarding internal polite. The people of the States did not need the federal government to protect them from themselves. If they thought otherwise, they would have formed a national form of government, just as Alexander Hamilton proposed in the constitutional convention. But this plan was rejected; yet somehow it now has a stronghold on our minds through a century of moral depravity, individual ill-virtue, philosophical expediency, religious despondency and political subterfuge.

The founding generation wanted to leave to the States the sovereignty which they deservedly won fighting a bloody war against Great Britain, so that they could govern themselves as the people in those States deemed best. They rejected nationalism at every turning point, and it was for this reason that the tenth amendment was insisted upon: to protect State sovereignty and to draw that inviolable line against the federal government. The Bill of Rights had absolutely nothing to do with limiting the States regarding their internal affairs. Yet today, it is another federal government arrow in their quiver to shoot down State sovereignty, piercing the heart of the original union.

A constitution cannot maintain a federal nature of parallel lines of state and federal sovereignty while at the same time allowing the federal government to intrude on the states’ sovereignty retained in that same document. If our founders were so wise as to create a constitution of parallel lines of sovereignty and as to leave to the states all matters not delegated to the federal government, including those matters in the bill of rights, then why would we happily accept a principle that completely contradicts that understanding and intention? Why do we rejoice when a State’s sovereignty is destroyed by the weapons we supposedly locked away from the federal government for our own sake? Do we not recognize that the weapons they use to destroy one State on one issue can be used to destroy another state on a different issue?–that they are the sole distributer of “justice”?

That the founding generation did not want the federal government to be in control of those matters which most people willingly hand over to the federal government today, including the second amendment, is undeniable. If the answer to the question of federal power rests in a conclusion reached through the use of contemporary-standard application, such that you are happy when the federal government encroaches upon the lines of sovereignty retained by the States, then I advocate and propose a different contemporary standard–one that rests upon the maxims of self-government, limited government, state sovereignty and real federalism, not based upon national supremacy, encroachment and interposition.

I reject the principles of nationalism, which have created our demising situation and plight today. I would much rather accept the evils of my state than the evils from the federal government. Evidently, the founding generation felt the same way. However, such cannot be said of supposed “conservatives” today.

Part 2 of this article will discuss the anticipated objections to this article. For part two click below.

Click here for part —–> 2,

Tom DeWeese
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Tom DeWeese is one of the nation’s leading advocates of individual liberty, free enterprise, private property rights, personal privacy, back-to-basics education and American sovereignty and independence.