Constitution of the United States of America (Photo credit: The U.S. National Archives)
On July 5, 2013, the day after Independence Day—a day John Adams declared would be celebrated with guns and fireworks, Governor Nixon vetoed Senate Committee Substitute for House Committee Substitute for House Bill No. 436 (HB 436), the Second Amendment Preservation Act. HB 436 is a very simple bill. It states in part,
All federal acts, laws, orders, rules, and regulations, whether past, present, or future, which infringe on the people’s right to keep and bear arms as guaranteed by the Second Amendment to the United States Constitution and Article I, Section 23 of the Missouri Constitution shall be invalid in this state, shall not be recognized by this state, shall be specifically rejected by this state, and shall be considered null and void and of no effect in this state.
It then provides a list of existing and threatened federal violations of the Second Amendment.
In his veto message, Governor Nixon made clear that he recognizes this confederacy of the United States as a government of men and not of laws or principle. The principle that the English common law, the U.S. Constitution and the Blackstone Initiative were and are founded upon is that there is a higher authority in the law of our nation, a law that all nations are bound to follow, the law of nature. We are and have a government of laws and not of men.
The law of nature is God’s law whether given in His design of the world or His written word. All nations are bound to this higher law. That concept was inherent within the English common law, and it was assumed in the founding of this nation. It is this understanding of a higher law that has caused those in the common law tradition to bind themselves to written documents such as the U.S. Constitution. Consider the grand traditions of covenantal or constitutional law in the English tradition: the Solemn League and Covenant, Magna Carta, the Mayflower Compact, the Declaration of Independence, and the U.S. Constitution, just to name a few.
This willingness to commit to a written memorial of higher principles is taken from the book of Deuteronomy. During the covenantal inauguration of Israel as a new nation, Moses commands the new nation,
And when [the new king] sits on the throne of his kingdom, he shall write for himself in a book a copy of this law, approved by the Levitical priests. 19 And it shall be with him, and he shall read in it all the days of his life, that he may learn to fear the Lord his God by keeping all the words of this law and these statutes, and doing them, 20 that his heart may not be lifted up above his brothers, and that he may not turn aside from the commandment, either to the right hand or to the left, so that he may continue long in his kingdom, he and his children, in Israel. Deuteronomy 17.
Ironically, Governor Nixon glosses over this commitment in our Constitution in his own veto message. He quotes the U.S. Constitution, Article VI, Clause 2,
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, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. [emphasis added]
What follows in the Governor’s veto message is a veritable treasure trove of citations to U.S. Supreme Court cases extolling the virtue of federal supremacy, including due deference to that talisman of Supreme Court supremacy Marbury v. Madison. And there is not just a little confusion over a concept known as nullification. What the Governor’s message says is that federal edicts are supreme no matter what they say and, in the words of Marbury v. Madison, “It is emphatically the province and the duty of the judicial department to say what the law is.” 5 U.S. 137 (1803). It elevates our elected officials and our unelected judges over the Constitution.
Governor Nixon failed to consider the seven little words highlighted above in the Supremacy Clause. “Which shall be made in Pursuance thereof” is not superfluous. Yes, the Constitution is supreme and all states are bound by it as long as we live in this confederacy. And all laws of the United States made “in Pursuance thereof” are supreme and all states are bound thereto. But federal laws that are at odds with the Constitution are not supreme. The Tenth Amendments speaks to the limited power of the federal agent. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Any law passed by the federal agent that conflicts with the Constitution is not binding and is void ab initio. Such laws reside in the exclusive province of the states.
Clearly, any law that restricts the right of gun ownership is in violation of the U.S. Constitution’s Second Amendment. “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Note that the second amendment was adopted for the “security of a free State.” This right of the people to keep and bear arms shall not be infringed. Rather than propounding a law that conflicts with the Constitution, HB 436 is enforcing the U.S. Constitution. HB 436 declares its faithfulness to the Second Amendment beautifully in the very first section of the bill. It is the federal agent that is in violation of the Constitution.
What Governor Nixon has done in his veto message is elevate men over the law. Per Governor Nixon, it doesn’t matter what the Constitution says. It doesn’t matter what the law of nature says. It doesn’t matter what God says. It only matters what Congress and the President say. And until such time as the Supreme Court says otherwise we are bound to follow what they command. Presumably, this would include an edict from the President to house federal troops in every household in Missouri. Presumably, this would include a prohibition against worshiping in any Catholic or Baptist church and a requirement that all people worship in an Islamic mosque. Presumably, it would also include an order shutting down the St. Louis Post Dispatch or the Kansas City Star.
HB 436 is not a nullification of a proper federal act. It is an interposition of the state of Missouri against a threatened violation of the Constitution by the federal agent. The sovereign state of Missouri has this authority. The last paragraph of the Declaration of Independence provides, “That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.” Our states are free and independent as is the state of Great Britain. Certainly, they are bound by the Constitution, but they are free to enforce that Constitution as well. May Missouri so do its duty. The Legislature must override this veto.