Category: Constitutional musings

Patriot Talk: Obamacare’s Constitutional Hurdle

In this week’s episode of Patriot Talk, guest Derek Glover & I discuss the Supreme Court hearings from last week.  We also discuss the ramifications for Obama’s campaign if the law is struck down or upheld.

Hope you enjoy:

 

Articles referenced in this episode:

Jonah Goldberg article: http://bit.ly/HWVM3I

Kennedy quote: http://bit.ly/HWVUQG

Patriot Week In Review: Local Media Hits New Low, Candidates Discuss Obamacare, Patriot Talk, & Joe Biden Thanks Dr. Pepper

Here’s a list of our top stories from this week:

  • Introducing Patriot Talk!  This is our new video project to keep you informed about what’s going on in politics around the county, state, and country.  The response has been terrific!

As always, thank you for reading!

Nic Horton

Is the ‘Constitutional Carry Act’ Constitutional?

I have contemplated this post for over a week now because I know some nut is going to try to use my comments to portray me as anti-2nd Amendment.  So I ask that as we have a conversation about this sensitive issue that everyone have an open mind & remember that my only objective is the discovery of truth.  Anyone who knows me knows that I am plenty pro-gun rights.  But I reject the notion that being ‘pro-something’ means we cannot have adult discussions about whether or not that position is constitutional.  My desire with The Arkansas Patriot, and now with Patriot Talk, is to have a conversation about the constitutionality of an array of issues & the intent of our founders.  This article is simply an attempt to do just that.

Allow me to begin by saying:  I love the 2nd amendment.  I love the 10th amendment.  I love liberty.  I’m also a big believer in original intent–the idea that the founders who wrote the Constitution knew what they meant better than we do, and that their foresight is better than ours.  So this last week when I ran across a headline about one of Arkansas’ U.S. Senators supporting a bill that has been bouncing around Congress for awhile, I felt like this was a good time to have a conversation regarding the federal Bill of Rights & how they apply to the states.

The bill before Congress would reportedly allow concealed carry permit holders to carry across all state lines, a decision that has always been made by the states themselves, not the federal government.  Ironically, the bill is entitled the “Respecting States Rights and Concealed Carry Reciprocity Act.”  But what about this bill respects states’ rights?  And is this even constitutional?

(Of course, I am operating on the premise that some people in this country still value the idea of constitutionality.)

The idea of leaving decisions related to gun laws to the federal government is a debate I have had with many close political, gun-loving friends before.  The general consensus among them has been, “It may not be within the originally intended powers of the federal government to act in this way, but as long as they’re being ‘pro-gun,’ I’m okay with it.”  In other words, “As long as big government is acting the way I want it to, it’s fine.”  Another argument that has been made is, “Well, the 2nd Amendment! What part of ‘shall not be infringed’ do you not understand??’ ”  And lastly, I have been told that I may be right about the original intent of the 2nd Amendment, but “it doesn’t matter, because we passed the 14th Amendment, so the U.S. Constitution does now apply to the states.”  Let’s take these points one at a time.

The idea that we can use big government for our purposes is wrongheaded and dangerous.  It’s a similar reaction that many had in response to the PATRIOT Act.  When Bush was in office & the act was originally passed, many conservatives were okay with the measures taken to keep Americans safe, even if it cost us a little liberty.  We trusted Bush.  But when Obama came into office and we begin to see how some provisions of the act could be abused, many changed their tunes.  Likewise, many who may want to support these efforts to impose gun-friendly laws on states should be leery of what this could mean if Democrats were to once again gain control of both houses of Congress.  Would folks in this camp support the federal government telling businesses that they must allow guns in their stores?  Big, centralized government is still big, centralized government.  I don’t like it ever, regardless of whether or not it appears to be doing something I like.

Then we have the argument that I have somehow missed the ‘shall not be infringed’ clause of the 2nd amendment.  Trust me, I’ve read it, and I’ve studied it.  The problem with this argument is that the 2nd Amendment is part of the U.S. Constitution, not the state constitutions.  Until a series of Supreme Court rulings in the late 19th century (the Slaughter-House Cases) and the passage of the 14th Amendment/Incorporation Clause, the U.S. constitution didn’t trump the states.  The 2nd Amendment restricted the federal government from infringing on gun rights, but it did not restrict the state governments.   It is true that most states passed their own Bill of Rights & amendments similar to the federal version, but the U.S. Constitution was never designed to trump states’ laws.  This was part of the founders design to keep the federal government restrained & states relatively sovereign, allowing for some variation in freedoms.

Look, if California wants to outlaw guns, that’s fine with me.  I really could not care less.  I am not going to live there, and they’re probably going to do it anyway, so be my guest.  But if Arkansas tried to restrict gun rights in any way, I would be up in arms (see what I did there?).  This is my state, where I live, and I like our freedom.  We should have the right as a state to determine how we are going to handle gun issues.

This design is truly part of the beauty of the system that the founders designed:  We are one nation, united under one federal government, but we still have local control over critical issues of freedom.  If I don’t like the laws in Arkansas, I can move to Texas.  But if the feds pass a stinker of a law, where am I to go?  States were designed to be laboratories of democracy.  Bills like the federal right to carry stomp on that design.

Now, as for the argument that ‘the 14th Amendment changed all that:’  Yes, the 14th Amendment did change some things, many of them positive, like standardizing citizenship & providing equal protection.  But how silly is it to think that an amendment passed in 1868 could change the original intent of the founders nearly 100 years prior?  I am a little rusty on my con-law, but I believe a look at the congressional record will show that many conservative congressmen at the time were very concerned that the 14th Amendment would be used in the exact way it has been, endlessly expanding the federal government’s power.  Proponents of the amendment argued it would be not be used in that way.  So you could say that even the original intent of the 14th Amendment isn’t being applied.

The bottom line is this:  We either believe in original intent, or we believe in a ‘living document’  We are either against big government, or we are for big government.  We are either against federal mandates or we are for federal mandates.  We cannot have it both ways.

If we are for big government, we should 1. Stop calling ourselves conservatives & 2. Brace ourselves.  Because you see, a government that is big & powerful enough, outside of its constitutional authority, to mandate that states accept gun-friendly laws is a government big enough to take guns away.  

From my perspective, a national right to carry bill is dangerous and unconstitutional.  Once we allow the federal government the right to force states to recognize concealed carry permits, we have officially opened the door to allowing the feds to take the permits away.

Nic Horton

(Send hate mail to ArkansasPatriot(at)gmail.com or hate tweets @nhhorton/@ArkansasPatriot) 

Debt Relief Amendment Pulled, Moved to Interim Study

I have so much to cover, including some local stuff, but so little time.  However, I want to start by taking just a minute to weigh on some developments that happened in Little Rock yesterday.

In case you haven’t heard, Senator Jason Rapert announced yesterday that he planned to pull SJR 1 or the National Debt Relief Amendment.

Rapert’s campaign tells me that all of the Republicans on the State Agencies Committee were in support of the bill, but they could not get any Democrats to break ranks with their party and move the bill to the floor.  There remained one legislative option to advance the bill–forcing a floor vote–but the campaign says the senator has ‘too much respect for the institution’ to enact such a tactic, one that has been compared to the U.S. Senate’s ‘nuclear option.’

In a statement, Rapert said:

Despite a bipartisan group of 47 members supporting SJR 1 in the General Assembly, and growing national support to address the out of control federal debt, we could not overcome the partisan divide of the Senate State Agencies Committee with only a few days left in the fiscal session.  SJR 1 has achieved a positive result in that more people are focused on the issue of the national debt, how the debt affects hardworking Arkansas taxpayers, and the constitutional options granted to states by our Founding Fathers.

While NDRA has passed two states, been introduced in Congress, and would have passed the Arkansas Senate had it been brought to the floor, I respect the institution of the Senate and will let this bill run its course through regular order instead of putting the chamber through the painful process of a floor vote to extract it forcibly from committee when we have much bigger issues like the $400 million Medicaid shortfall facing our state.

This is yet another example of the Democrats’ unwillingness to compromise or even consider out-of-the-box solutions to problems we face in the state.  This is also a real loss for the taxpayers:  this was our best chance to reign in federal spending.

Despite the misinformation/fear-mongering campaign that was waged by Paulbots & Secure Arkansas, SJR 1 called for an amendment convention, not a ‘constitutional convention’ as they were inaccurately saying.  As Advance Arkansas Institute and others stated, this would not have been a ‘free for all’ assault on the U.S. Constitution.  It would have been a meeting for a specific purpose, limited in scope, and anything that came out of the convention would have had to go before the states for ratification, just like any constitutional amendment.

I’m not sure what these groups accomplished by siding with Democrats in a misinformation campaign against one of Arkansas’s most conservative legislators and a downright constitutional idea to reign in federal spending, but I hope they’re happy.  The taxpayers will now suffer the result.

I commend Senator Rapert & his co-sponsors, including Rep. Mark Biviano, for their courage & leadership on this issue.  The only way we’re ever going to reign in the federal government is through state-based solutions.  I am very thankful we have some members of the state legislature that understand this and are willing to fight to make it happen.

It also shows real leadership that Senator Rapert was willing to drop this issue for now and focus on a more pressing issue for the state at this time, our imminent Medicaid crisis.  With constitutional conservative fighters like Senator Rapert, I am confident we can avoid disaster, but it will not–and should not–be through tax increases.  It’s going to take cuts.  Will Democrats work with Republicans to solve the crisis, or will they continue to refuse to compromise?

 

Nic Horton

10 Facts to Rebut the Mythology of a ‘Runaway Constitutional Convention’

The other evening, after posting my article “Why A Constitutional Convention May Not Be As Scary As You Think,” someone tweeted me & told me that an “Article V convention is unconstitutional.”

It immediately became abundantly clear to me that we have a lot more educating to do on this issue if we ever want to see an Article V convention to adopt something of vital importance like, say, a National Debt Relief Amendment.

I did some more snooping around at RestoringFreedom.org & uncovered another great resource from Goldwater Institute called, “10 Facts to Rebut the Mythology of a ‘Runaway Convention.’ “

Below are the first 5 facts.  #1 is perhaps the most important because it establishes the fact that an Article V convention–which is what the NDRA movement is calling for–is not actually a constitutional convention:

  1. Article V does not authorize a constitutional convention; it authorizes a convention for proposing specific amendments.
  2. When the Founders drafted the U.S. Constitution in 1787, they specifically rejected language for Article V that would have allowed the states to later call for an open convention.
  3. Thirty eight (38) states must ratify any proposal from an amendments convention, requiring a broad consensus that makes sure an amendments convention cannot “runaway.”
  4. The limited scope of an amendments convention is underscored by the fact that it specifically says amendments cannot alter the equal number of votes for each state in the U.S. Senate without the consent of the affected state. This establishes that an Article V convention couldn’t simply rewrite the entire Constitution.
  5. The states define the agenda of an amendments convention through their applications for the convention and through the commission of delegates. Amendments conventions can be limited to specific topics.

Read the other 5 facts here and if you have friends who are espousing irrational fears about an Article V convention, share this document with them.

We have a responsibility to fight misinformation with truth.

Nic Horton

Why A Constitutional Convention May Not Be As Scary As You Think

Earlier this week I shared some research from the Goldwater Institute about a constitutional convention, in hopes of easing some concerns that have recently arisen in the state.

Yesterday, Dan Greenberg of Advance Arkansas Institute weighed in with a much more thorough analysis, and dare I say expert opinion on the concept of a convention.

AAI’s policy paper, titled “What State Legislators Need to Know About the Prospect of a ‘Runaway Constitutional Convention,’ ” outlines 3 main assurances that a convention would in fact be limited in scope.

1) It is impossible for an Article V convention to change the Constitution in any respect unless, after that convention, 38 states independently decide to ratify any such proposed change.

2) Arkansas state legislators could easily pass legislation that ensures that, in the event of an Article V convention, our state’s delegates could never create a “runaway convention.”

3) The people of Arkansas could pass a state constitutional amendment that would ban ratification of any amendment that had not been proposed by two-thirds of the states.

If you’re a state legislator, concerned about a runway constitutional convention, or just so happen to be a constitutional nerd, you need to read the full paper.  You can find it here.

My favorite quote from the paper:

Advocates of limited government often refer to the need to recognize the powers of state governments under the Tenth Amendment. However, an equally important power of the states is contained in the Constitution‟s Article V – to exert control by the states over a too-powerful federal government – and friends of constitutional government do themselves no favors when they ignore or misconstrue this Article’s provisions.

Up to this point, I have been fairly undecided on the idea of a convention.  I have seen legitimacy in the arguments both for & against.  However, there are two things I know for sure:

1. There is always a great amount of fear-mongering from The Left whenever conservatives start proposing bold reforms to reign in government.

2. Dan Greenberg is seldom wrong.

Nic Horton

Goldwater Institute Makes The Case For Debt Relief Amendment

Earlier today I briefly discussed the idea of a constitutional convention to adopt the National Debt Relief Amendment (NDRA) which was recently proposed here in Arkansas.  Boy, that has really spurred some discussion over on my Facebook page & in several of the Arkansas TEA Party discussion groups.

Here is a video from the Goldwater Institute that further explains the idea behind the NDRA.  Check it out:

Nic Horton