McDonald v. Chicago: The Great Misunderstanding of State Sovereignty, Part 2

by Attorney Timothy Baldwin

The objections I will likely receive from part 1 of this article are these main two: (1) the fourteenth amendment guarantees to every “United States citizen” the privileges and immunities in the United States Constitution and that includes the second amendment; and (2) the states do not have a right to deprive their citizens of a fundamental right, such as the right to keep and bear arms, such that, the matter is not one of granting power to the federal government, but of limiting the state government. To these arguments, I preemptively respond.

As to the first argument, let us admit a historical fact: the states did not waive any right to govern themselves unless it was delegated to the federal government and this included the regulation of those matters listed in the bill of rights. This was held by the United States Supreme Court and State Supreme Courts up until and even after the fourteenth amendment was ratified, concluding that the States retained the power to govern themselves in those areas, except as delegated to the federal government in article 1, section 8, or expressly waived in article 1, section 10. More pertinently, the founding generation agreed that the bill of rights did not restrict the States to govern internally, much less than the powers delegated to Congress did. Thus, the argument that the fourteenth amendment gives power to the federal government to enforce against the states is a recent one in America’s history and is founded only upon the “privileges and immunities” clause of the fourteenth amendment. Unfortunately, however, this constitutional application, in part, sacrifices the federal form of government for a national form–a concept that was rejected in the constitutional convention debates of 1787 and was most certainly rejected by the Anti-Federalists. I likewise reject it.

As to the merits of this argument, I do not feel it necessary to delineate the decisions of federal courts. Admittedly, you could take your pick of cases post 1900 that would support your argument to give the federal government this power to control the States. Rather, I want to express the political dangers and implications of this argument. In essence, this fourteenth-amendment-limits-the-states argument overturns the foundation upon which America was founded: the federal government has no power to intrude upon the states in any matter not delegated to it or waived by them; the states enjoyed all natural and constitutional rights to govern themselves; the state governments were closer to the people and more apt to meet the needs of those people; the state governments could be affected and changed by state citizens more easily than the federal government could be controlled by a mass of divergent peoples; matters regarding the intricate and essentials of life must be left to the States; the inviolable separation of powers is crucial to the sustenance of a federation of states; a national form of government is more dangerous to the liberty of the people than a federal form.

These, among others, are the maxims upon which America rested. The fourteenth amendment argument opposes these principles and prevents their practicality in a real and substantial way. In short, it is dangerous. It is no wonder that the fourteenth amendment was pushed through by those modern-day nationalists immediately after the War Between the States and defeat of the Confederate States of America. I reject this argument from a political and statehood perspective and advocate, as James Madison did, for an inviolable line of separation between state and federal authority. This line is worthless to control the federal government unless the people understand it and the States enforce it.

As to the second argument that the states do not have the right to deny their citizens of a fundamental right, such that the second amendment does not so much grant power to the federal government as it does limit the power of the state governments, I find it to be missing the point entirely and calling “six eggs” by the name “one-half dozen.” That the second amendment’s purpose purportedly only limits the States and does not increase the federal government’s power attempts to hide in the passive voice what is reality in the active voice. Indeed, actions speak much louder than words: the federal government’s power is increased at the expense of the States. With the responsibility to govern comes the power to force.

Additionally, this argument ignores the matters of separation of powers; the limited nature and scope of the federal government; the essence of the tenth amendment; and the nature and character of the union formed in 1787-1789. Let us take one example to illustrate what we mean by these concepts. Suppose the Chinese government denied its citizens the right of trial by jury of their peers. Admittedly, this would deny what we consider to be a fundamental right. So, would America have the right and power to demand that the Chinese government change its law and force it to do so? Or put it in the reverse, would China have the right to force America to do this or that? The answer should be obvious: no, because neither has jurisdiction over the internal political affairs of the other. America’s and China’s powers are inviolably separate from each other. For one to attempt to encroach on the other is an act of war.

That harms may have been committed is beside the issue and does not justify foreign interference. Does the lack of power to interfere make China’s government correct? No, it does not. Likewise, the federal government’s lack of jurisdiction to force a State to do such and such does not justify a State using its power to limit its citizens of a right. Such is the price we are all willing to pay to maintain our national sovereignty. Yet somehow the price is too high when it comes to State sovereignty in America.

 If the argument to enforce the federal government’s will upon the States is based upon “what the states should do,” then why not form a world government to ensure that all the governments of the world follow the fundamental laws of freedom set forth by a world constitution?–which would be, of course, enforced by a world police, military and executive leader. Why stop “justice” from reaching all ends of the earth? Why not just copy and paste the U.S. Constitution and ratify “the Constitution for the United Nations of the World”? Oh wait, the U.S. Constitution would not be suitable for the circumstances involving governing the world, and thus, there would be need for a new and different constitution for that purpose; but of course, the U.S. Constitution is perfectly conducive for self-government and freedom for a diversely-interested population of 400 million people living in geographically-unique 50 states, across an entire continent and beyond. I am sure that the founding generation would have done everything exactly the same as they did in 1787 were they to see what we see today. (Sense the sarcasm.)

Attempts to form such a world-government constitution are likely considered by those reading this article to be evil and corrupt to its core, most likely based upon the principles of self-government, limited government and national sovereignty. Indeed, and the same principles apply to the federal government’s force upon the States. Separation of powers; limited government; self-government; federalism and state sovereignty: those words are not just words to be ignored. They have active application, just as you would utilize them to rationally oppose world government. They have meanings of jurisdiction and authority to be applied on our national scale as well, and they are just as important. Just because you do not like what a particular State is doing does not justify the federal government’s intervention against that State. And even if it were “constitutional” based upon the 1868 amendment, it is flawed in its principle and dangerous in its application.

Each state has its own constitution–for political and societal reasons. If there is a State that does not protect the right to keep and bear arms, so as to limit the state government’s authority to regulate that matter (just as the second amendment limits the federal government’s power to regulate that matter), then the citizens who care about freedom in their State should endeavor to amend their constitution. At last, if it appears that freedom is utterly not capable of thriving in that populace, there are forty nine other states from which to choose, and such a fact would prove that the vast populations throughout the States do not share fundamental ideas and beliefs as to what freedom is and should not be sharing the union together. Indeed, if those people care so little about their rights, why should my State be detrimentally affected by the politicians they elect to the federal government? Furthermore, what good does it to do those citizens to exchange their State tyranny for Federal usurpation and encroachment upon all of the other States’ powers and sovereignty? They are trading in one small beast, for one very large one.

If you insist that that federal government has the power to force its will upon the States based upon the fourteenth amendment, then do not expect that this ever-intrusive, out-of-control, ever-growing and ever-taxing/spending federal government will “restore” freedom. By the nature and implication of that thought process and belief, you desire that the States be controlled by the federal government; you desire that a national form of government be maintained and perpetuated in this once-union-of-sovereign-states; you have elevated forced-union principles above individuality of State self-government; you have discounted the irreparable harm that this federal government has done to the States in the name of their “national supremacy;” you do not believe that the citizens of the States should solve State problems on State levels under State constitutions; you believe that self-government on State levels is impossible and should be used as a down-payment for the purchase of federal statism.

I agree with my good friend, Wilton Strickland: forget the federal courts and refuse to use the constitution (which was intended to limit only the federal government) as a way of controlling States and eliminating their sovereignty. Freedom will only be restored when people realize that using the federal government to solve their problems is creating a much bigger problem than the founding generation bargained for or anticipated. Get back to self-responsibility and self-government. Get back to State constitutions, self-sufficiency and self-reliance. Become a statesman in your State. Enlighten the minds of your fellow citizens. Get back to internal dignity and polite. Restore freedom in your State. Do not trample over the freedom of everyone else as you run to Uncle Sam to correct the behavior for which you should be responsible.

For part 1, click here.

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This post was written by:

Timothy_Baldwin - who has written 134 posts on Liberty Defense League.

Timothy Baldwin is a Florida and Montana attorney who received his B.A. degree at the University of West Florida and graduated from Cumberland School of Law at Samford University in Birmingham, AL. After having received his Juris Doctorate degree from Cumberland, Baldwin became a Felony Prosecutor in the 1st District of Florida. In 2006, he started his own law practice, where he created specialized legal services entirely for property management companies. Baldwin is a prolific writer/columnist and writes for numerous publications, including The New American magazine. Baldwin is also an articulate speaker relevant to freedom’s issues. Baldwin is an author of legal and political articles, as well as his latest book, Freedom For A Change (published by Agrapha Publishing). Baldwin has a working manuscript on Romans 13: The True Meaning of Submission and expects to publish this book soon. Baldwin is involved in important state sovereignty movement issues, including the federal litigation in Montana involving the Firearms Freedom Act.

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7 Responses to “McDonald v. Chicago: The Great Misunderstanding of State Sovereignty, Part 2”

  1. Travis Ogle Says:

    It’s easy to see the unmistakable truth of your two part essay on the desirability of a Federalist government that recognizes State Sovereignty verses a National government that does not. My problem lies in the personal experiences I’ve encountered while living in various states in our union. In all cases it has been completely clear to me that the differences and or preferences of the citizens of each State were too diverse to allow them to live together in freedom and liberty.

    The greatest differences seemed to be concentrated in those citizens that lived in the largest cities and those that resided in predominately rural areas. While I find self reliance generally typifies those members of a rural community the opposite is generally true of those that inhabit larger cities, where dependance on the government is more common-place.

    The restrictions on freedom and liberty that seem to be acceptable to most city dwellers are viewed as oppressive to most country folk. Cohesion of customs and beliefs are necessary for members of a community to live and function in freedom and pursue the happiness we all want. I do however, recognize that this is an over simplification of the circumstances that exist.

    So where does that leave us? Perhaps our 50 states should be subdivided into even smaller states with political boundaries adjusted to reflect the new and smaller States. I believe the smaller the size of the government the better. The less intrusive the government the better. The Government that we have today is not a Christian Government. It does not further the teachings of God and it is not obedient to His Word. As such, it is more like a cancer that never misses an opportunity to grow and spread throughout our lives and devours our freedom as it spreads.

    I have often wondered if “County Nations” would be more appropriate. The elected Sheriff of each county would be the chief executive officer and the elected Board of County Commissioners would serve the legislative functions, while the Judicial functions would be handled by elected judges that truly represent the local needs of the people. Since such a structure already exists in the counties throughout America, it should not be impossible to modify it so that the greatest amount of freedom and liberty could be enjoyed by the greatest number of citizens.

    Thanks Tim for continuing to voice freedom’s concerns and provide the necessary education we all need to be responsible citizens.

    In Christ,

    Travis Ogle
    Pace, FL

  2. David McElroy Says:

    Tim!

    I do appreciate the enormous contribution you make in helping us learn the legal definitions and processes which are frequently not conveyed in the common public’s careless use of language.

    You know I sympathize with your desire for a loose federation of allied sovereign states rather than the national socialist union we suffer now. I support home rule and the right to secede.

    However, it was my understanding the Bill of Rights, documenting God-given rights, was intended to bind government entities subscribing to the US Constitution and invested powers in WE THE PEOPLE to check the powers of the state.

    You seem to say you oppose recognition of such basic rights, even the right to defend oneself, and that states subscribing to the US Constitution need not be constrained by the contract/compact that they entered into.

    It would seem expedient and proper to completely secede from the Union if the people of a state do not wish to abide in that regime.

    But I insist, in any state, anytime, that we need to uphold our natural rights to freedom of conscience and self defense above all others, speaking freely and standing as armed sovereign citizens.

  3. Josh Cole Says:

    The idea of tyranny being imposed on the few by the will of the majority strikes at the core of what was once our Constitutional Republic.

    The Bill of Rights and the Electoral College were safeguards against such actions, but as the the Bill of Rights has been misconstrued, the ability to vote has been granted to everyone as opposed to being earned and the Electoral College no longer reflects the geography of an agrarian collection of 13 states on the Eastern seaboard, we must rethink everything in new ways.

    For instance, lets say Idaho, Montana, North Dakota, South Dakota, Wyoming, Nebraska, Iowa, Utah and Texas all begin to not enforce federal gun laws and even put strict limits on abortions They do this through local elections and success at the state capitol by passing legislation and having it signed into law.

    These states have a combines total of 67 Electoral College votes. California and New York, both liberal states who would not want to adopt such policies and would most likely vote for a Presidential candidate that would vow to crush the actions of these state, have a combines total of 86.

    These 9 states and their massive land area will most likely now have to face a president who they did not vote for that will attempt to undermine their sovereignty via the 14th amendment. Obviously, such things ought not be. This is just one example of how unfit our our Constitution is at maintaining liberty in the present day.

    When the Constitution was ratified, massive cities did not exist in any comparable way to what they do today. Cities have a knack for breeding tyranny and as millions have flocked to the big cities throughout the country these states, and their electoral votes, go to the presidents who care nothing for liberty. That leaves the more freedom minded agrarian states to be placed under the tyrannical oppression of the city dwellers who should have no jurisdiction whatsoever over them.

    Similarly, no freedom minded person should celebrate when they see a centralized national power enforcing a law, even if its a good law, on a local community who does not want that law. The ends don’t justify the means and short term thinking is poison to the survival of liberty. Centralized power is never the answer.

    John Adams said that this form of government was only made for a moral and religious people, and is totally inadequate for any other. I say, perhaps we need a modern day Founder to say that this present form of government is totally inadequate to govern such a large and diverse land area. It seems the more we try the more freedom we lose.

    The Founders had to think “outside the box” when they came up with their form of government. It had not existed before. They created one that fit their day. In our day, we must begin to do the same. We must stop trying to fit a square peg into a round whole by having the Constitution govern a land area that it was never designed to govern. Let us look to their example, but reach modern day conclusions.

    We must rethink sovereignty. We must rethink jurisdiction. We must rethink America.

  4. Timothy_Baldwin Says:

    David, thanks for your comments. The answer to the matter cannot be answered shortly in this reply, but I just have to quickly say that the founding generation did not believe what you are saying to be true, which is why they did not apply the federal constitution to the States, other than Article 1, section 10. They believed in the pure and real separation of powers, to allow the people of the States to govern themselves.

  5. Timothy_Baldwin Says:

    amen, Josh! you are right on!

  6. JMB Says:

    Every large city in America has millions of people living within there boundaries, and I do not believe that the majority of these people are significantly over reliant on government, not to the point that could only describe a minority within these cities who do indeed enjoy excessive restrictions over freedom.

    The problem is corrupt politicians who use minorities to ignore the clear, and reasonable will of the majority within these large cities.

  7. Pat Henry Says:

    In all of the above, the reality, legal standing (as a lesser magistrate), and vision of County governments is overlooked. Tim’s article, while excellent, nevertheless presents federal action as the only restraint to state-level tyranny. However, just as a state may LEGALLY resist federal overreach – based on its Constitution – just so the People in any County have legal (God-authorized) standing to resist state intrusions on recognized natural rights. These rights are recognized all the way to the federal Constitution and Bill of Rights, and thus have standing in a court of any level. This means that even if any particular court judge may deny such standing, the people can nevertheless cry out to the Lord of heaven for judgment in their favor. Authority ultimately trumps power. This then becomes spiritual war, waged on legal, civil, peaceful terms, rather than rebellion or insurrection. If things eventually necessitate armed defense, such an ordered people then have Providence on their side, and can appeal to Such.

    “County nations” as some new entity are not needed. We already have such legally constituted governments. This was a way to moderate WITHIN states jurisdictions, just as States essentially moderate under Federal jurisdiction (ignoring for the moment the technicality that states YIELDED limited powers to a Federated government among the states of the nation).

    “The People” is nothing less than a tyranny of the majority (the dreaded Democracy), unless they are ordered in limited jurisdictions in order to raise a voice in their various venues. The advantage is that is channels a morass of opinion into a clear, cutting stream.

    Once again, County government needs to be explicitly recognized as a defense of its local citizens against state-level (and even federal-level) encroachments. Wherever we can also get state-level agreement in the legislatures to resist federal tyranny, this is obviously a greater level of defense. Electing federal Representatives who abide by their oath to the Constitution is yet another level of protection. But nothing prevents us from working on the lower, easier-to-take levels if that is where we can gain influence. Nothing, that is, except our own fears and lack of faith.

    It seems to me that the way to avoid the erosions of ground under these long-standing jurisdictional walls against the socialist, centralizing flood is to ASSERT them in the halls of legislatures and courts. In addition to having the blessing of God, this will have the affect of setting the terms of debate. The enemy has sought to confuse; sound the shofar in the holy mountain. His Law is destined to go forth, bringing light. Who will follow His way of sacrifice, the Davidic way of praise and asking the Spirit for strategy? Caleb arise, the inheritance lies before you in the land of the giants. The giant enemies are there: 1) because of our own sinful inaction, and the sin of others; 2) so that God alone gets the glory as they fall.

    Again, both County and State-level jurisdictions are legitimate and important to fill with the righteous and principled, even – and especially – when the federal level offices are difficult to take. The same goes for the large city municipal magistracies within states (in that sense equal to counties), as the brother above brings up.

    We can be grateful that despite the long history of infractions and erosions that it has not been necessary until now to use these tools of government laid by the Founders across the board and under duress. However, how men and women of God respond now will in fact determine the path for our future march to see cities set on hills across this land – indeed, across the globe. That brave minority under Washington and the Declarers who began this country faced similar odds – as did ancient Israel as God placed them at the edge of Promise.

    COUNTIES, as well as state-level government offices, must be a focus not only of current elections (even a month before is not too late to start a local write-in campaign), but then pro-action by those seated. (If you do not win, your campaign is publicity for the following election, and even to gain a voice for opinion-making in the meantime.) This will not change in the coming years. The sooner we rise up and take our places the better chance we have of fighting from a “hill” rather than a defensive bunker. Legal authority is backed by the Almighty, even when rebellious men oppose it.

    So my MAIN POINT with respect to the discussion is remember COUNTIES as a third level in adjudicating civil differences.

    But I ADD this: while discussion is good and interesting, even important, unless we ELECT ourselves and/or like-minded individuals, there will be little change. The political weight outside legislative halls is much less than inside, and requires more effort. Those seated have an authority, not just an opinion that can be easily dismissed or ignored. Remember, we are not aiming at a Utopia (such a mindset leads to Behemoth). The immediate task (the main part of Romans 13 authorization) is to restrain evil, before it breaks out on all sides.

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