Observations by a Citizen: Gun Control, Abortion, and Federal Powers

By Hal Rounds

When our Constitution was adopted by our founding generation, they would have been aghast if told that someday the government it created would have become the vast monster that we have today. The generations that have followed have been increasingly asleep, and the lesson that teaches that we have “a limited government” has become little more than an empty slogan. Congress and the President are using powers that were never on the list our founders agreed to. The pompous claims by so many politicians that we are operating under the Constitution are as fraudulent as the rants of the Wizard of Oz ashe scrambled behind the curtain to intimidate Dorothy, the Tin Man, the Scarecrow, and the Cowardly Lion.

Despite the quick lessons in our schools that our government is “limited” by the Constitution, we are also taught that there is a part called “the Supremacy Clause,” and that this clause (Article VI) states: “This Constitution, and the Laws of the United States . . . shall be the supreme Law of the Land, . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” We are taught that all state actions must submit to any federal law, and particularly that the judges in states must reject any state claim that differs from a federal law.

Now, I put an ellipsis ( . . . ) where some very important words actually go. They define the limits to federal supremacy, a section that our usual lessons fail to explain: The laws made by Congress (and the unelected regulatory agencies) must “be made in Pursuance thereof, and made under the Authority of the United States.” “In pursuance thereof” tells us that laws by Congress can only have “supreme” status if authority for them is found in the words of the Constitution, because that is “the authority of” the states that agreed to become united. Ignoring this limitation, Congress does enact laws that do not find authority in the listed powers of the Constitution. But such laws are void – we have no duty to obey them. We should act, generally by challenging such laws in the courts, or we will lose more of our liberties.

Despite this, we have been increasingly content to submit to the improper laws that Congress and the federal agencies have burdened us with. Occasionally, however, we see some act by our government that gives hope that what the founders gave us survives, however burdened by our disobedience,  

Back in the 1990s, Congress enacted the “Brady Law” which included a plan to collect the names of people who had criminal backgrounds and other records that took away their right to buy a gun. That federal law required local law enforcement officials to collect these records and post them to a federal listing. Two sheriffs out west (Printz and Mack) filed lawsuits arguing that they had no obligation to enforce the federal law – after all, they worked for their state, not the federal government. In the end, the Supreme Court agreed that Congress has no power to require state officials to preform duties invented by Congress. Such a power is not “in pursuance of” our federal Constitution.

Just last year, an equally significant case shook the news media: That was the “Dobbs” decision, which agreed with Mississippi that there was no power in our Constitution to intrude into the powers of each state to make laws regarding abortion. For 50 years, the “Roe v. Wade” decision had, as if it was some federal statute, improperly imposed a court-made law as the supreme law of the land. But that violated our Constitution.

Such rulings give cause for hope, but they are so rare. Meanwhile, Congress and federal agencies rule activities that are not among the powers listed. They restrict our liberties, drain our pockets, and invent dissonant rules that we are told our schools, hospitals, weddings, farms and factories must obey, pretending that the “Supremacy Clause” requires us to submit.

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