Information from: Government Principles
Utah Governor Gary Herbert and State’s Rights
It’s frustrating, every day I pick up the paper or watch the news, I am confronted with some “elected” government official who labels them-self as a fairly conservative republican. In this case, Utah’s governor Gary Herbert, who is reported on the news as obeying any “federal” law passed by Congress concerning gun laws. I have in just the past few weeks posted an article addressing federal laws and their applicability or force within the boarder of the individual States. For the benefit of Governor Herbert, I will post it again. Maybe some one can direct this to him so he can be brought up to speed. So to repeat . . . . . . .Remember, that federal law is “territorial” and the legislative jurisdiction of the Federal Government is limited to strictly defined areas, Article I, Section 8, clause 17 of the U.S. Constitution. “In principle, the exclusive legislative jurisdiction of the United States (federal government) is not addressed to subject matter, but to specific geographical locations.” See U.S. v. Bevans, 16 U.S. (3 Wheat) 336 (1818). Only with the consent of the States, does that jurisdiction enter in to the territory of the individual States. To quote from clause 17 of section 8, Article I; “. . . to exercise like Authority (exclusive legislation) over all Places purchased by the Consent of the Legislature of the State . . . .”
This concept of territorial jurisdiction received added clarity by a Supreme Court decision, U.S. v Lopez, (No. 93-1260) decided April 26, 1995. The decision was given by Chief Justice Rehnquist as the case centered around the abuse of Congressional authority in relationship to the Commerce Clause contained in the Constitution. The central theme conveyed by this decision was that there are limits to Congressional authority. Justice Thomas treats this concept even more in quoting from a 1992 decision (New York v United States, 505 U.S. 144) delivered by Justice O’Connor: “‘No one disputes the proposition that the Constitution created a Federal Government of limited powers’ (cited quotes omitted). It must necessarily be so, because the United States (government) has no claim to any authority but such as the States have surrendered to them.’ . . . Indeed, on this crucial point, the majority and Justice Breyer agree in principle: the Federal Government has nothing approaching a police power.” Continuing, Justice Thomas makes clear that: “. . . Congress has plenary power over the District of Columbia and the territories. The grant of comprehensive legislative power over certain areas of the Nation, when read in conjunction with the rest of the Constitution, further confirms that Congress was not ceded plenary authority over the whole Nation.” A lot more could be said on territorial jurisdiction, but this should suffice.
“It follows from this review of the clause, that the states cannot take cognizance of any acts done in the ceded places after the cession; and, on the other hand, the inhabitants of those places cease to be inhabitants of the state, and can no longer exercise any civil or political rights under the laws of the state. But if there has been no cession by the state of the place, although it has been constantly occupied and used, under purchase, or otherwise, by the United States for a fort, arsenal, or other constitutional purpose, the state jurisdiction still remains complete and perfect.” Joseph Story, Commentaries on the Constitution, 3:§§ 1212–22; 1833 § 1222.
Within their boarders, the States are supreme authority guided by the U.S. Constitution, which is applicable to them also (Amendment X) and the laws of the Federal Government made “in pursuant” to the Constitution. At present there is no language in the Constitution which directs the Federal Government to regulate the type of guns that individuals may own or how many bullets the gun can hold. I would suppose that if an individual wanted to and could afford it, they could buy a tank. Where the Constitution is silent the federal government is prohibited in entering.
In U.S. v. Knight Co., 156 U.S. 11, the Court declared: “It cannot be denied that the power of the state to protect the lives, health and property of its citizens and to preserve good order and the public morals, the power to govern men and things within the limits of its dominion, is a power originally and always belonging to the state, not surrendered to the general [federal] Government, nor directly restrained by the Constitution of the United States, and essentially exclusive.”
“The consent requirement of Article I, section 8, clause 17 was intended by the framers of the Constitution to preserve the State’s jurisdictional integrity against federal encroachment. The Federal Government cannot, by unilateral action on its part, acquire legislative jurisdiction over any area within the exterior boundaries of a State,”
The law’s of Congress in respect to those matters (outside of Constitutionally delegated powers) do not extend into the territorial limits of the states, but have force only in the District of Columbia, and other places that are within the exclusive jurisdiction of the national government. (Caha v US, 152 U.S. 211) Constitutional restrictions and limitations were not applicable to the area of lands, enclaves, territories and possessions over which Congress had exclusive legislative authority. (Downes v. Bidwell, 182 U.S. 244)
State jurisdiction encompasses the legislative power to regulate, control and govern individuals, enterprises. real and personal property’ within the boundaries of a given State. Federal jurisdiction, by contrast, is extremely limited and can be exercised only in areas external to the sovereign States unless, and until, a State has ceded a portion of its jurisdiction to the federal government.
The legal effect of the Declaration of Independence was to make each newly created State a separate and independent sovereign over which there was no other government, superior power or jurisdiction.” (M’ilvaine v Coxe’s Lessee, 8 US 209)
(Jurisdiction Over Federal Areas Within The States: Report of the Interdepartmental Committee for the Study of Jurisdiction Over Federal Areas Within the States, Part II. at 46.)
The governors, State legislatures, sheriffs, etc., have every right and authority to protect the citizens. As has been said time and time again, the Federal Government has no police powers within the States. This principle applies to ALL federal legislation. Mr. Obama and the Democratic Socialist Party can pass all the laws they want, but only about 95% will apply to the States. And then only to “federal” areas ceded by the States. So Governor Herbert, breath easy, and tell the Obama regime where to put it! We do have and support the Constitution, which as governor, you were sworn to uphold.
Added note, some one remind the Democratic Socialist Sen. Dianne Feinstein that the Second Amendment was not just for sportsmen. It was put there to protect Americans from the tyranny of individuals, like Senator Feinstein, who want to force communism on us. I will be working on a post that will demonstrate what the future holds for this land if it continues on the path it now travels.
Editorial by Loral Glazier
Reposted 01/25/2013
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