By KIRK JOHNSON

Published: March 16, 2010, NY Times

Gov. Mike Rounds of South Dakota, a Republican, signed a bill into law on Friday declaring that the federal regulation of firearms is invalid if a weapon is made and used in South Dakota.

On Thursday, Wyoming’s governor, Dave Freudenthal, a Democrat, signed a similar bill for that state. The same day, Oklahoma’s House of Representatives approved a resolution that Oklahomans should be able to vote on a state constitutional amendment allowing them to opt out of the federal health care overhaul.

In Utah, lawmakers embraced states’ rights with a vengeance in the final days of the legislative session last week. One measure said Congress and the federal government could not carry out health care reform, not in Utah anyway, without approval of the Legislature. Another bill declared state authority to take federal lands under the eminent domain process. A resolution asserted the “inviolable sovereignty of the State of Utah under the Tenth Amendment to the Constitution.”

Some legal scholars say the new states’ rights drive has more smoke than fire, but for lawmakers, just taking a stand can be important enough.

“Who is the sovereign, the state or the federal government?” said State Representative Chris N. Herrod, a Republican from Provo, Utah, and leader of the 30-member Patrick Henry Caucus, which formed last year and led the assault on federal legal barricades in the session that ended Thursday.

Alabama, Tennessee and Washington are considering bills or constitutional amendments that would assert local police powers to be supreme over the federal authority, according to the Tenth Amendment Center, a research and advocacy group based in Los Angeles. And Utah, again not to be outdone, passed a bill last week that says federal law enforcement authority, even on federal lands, can be limited by the state.

“There’s a tsunami of interest in states’ rights and resistance to an overbearing federal government; that’s what all these measures indicate,” said Gary Marbut, the president of the Montana Shooting Sports Association, which led the drive last year for one of the first “firearms freedoms,” laws like the ones signed last week in South Dakota and Wyoming.

In most cases, conservative anxiety over federal authority is fueling the impulse, with the Tea Party movement or its members in the backdrop or forefront. Mr. Herrod in Utah said that he had spoken at Tea Party rallies, for example, but that his efforts, and those of the Patrick Henry Caucus, were not directly connected to the Tea Partiers.

And in some cases, according to the Tenth Amendment Center, the politics of states’ rights are veering left. Rhode Island, Vermont and Wisconsin, for example — none of them known as conservative bastions — are considering bills that would authorize, or require, governors to recall or take control of National Guard troops, asserting that federal calls to active duty have exceeded federal authority.

“Everything we’ve tried to keep the federal government confined to rational limits has been a failure, an utter, unrelenting failure — so why not try something else?” said Thomas E. Woods Jr., a senior fellow at the Ludwig von Mises Institute, a nonprofit group in Auburn, Ala., that researches what it calls “the scholarship of liberty.”

Mr. Woods, who has a Ph.D. in history, and has written widely on states’ rights and nullification — the argument that says states can sometimes trump or disregard federal law — said he was not sure where the dots between states’ rights and politics connected. But he and others say that whatever it is, something politically powerful is brewing under the statehouse domes.

Other scholars say the state efforts, if pursued in the courts, would face formidable roadblocks. Article 6 of the Constitution says federal authority outranks state authority, and on that bedrock of federalist principle rests centuries of back and forth that states have mostly lost, notably the desegregation of schools in the 1950s and ’60s.

“Article 6 says that that federal law is supreme and that if there’s a conflict, federal law prevails,” said Prof. Ruthann Robson, who teaches constitutional law at the City University of New York School of Law. “It’s pretty difficult to imagine a way in which a state could prevail on many of these.”

And while some efforts do seem headed for a direct conflict with federal laws or the Constitution, others are premised on the idea that federal courts have misinterpreted the Constitution in the federal government’s favor.

A lawsuit filed last year by the Montana Shooting Sports Association after the state’s “firearms freedom” law took effect, for example, does not say that the federal government has no authority to regulate guns, but that courts have misconstrued interstate commerce regulations.

National monuments and medical marijuana, of all things, play a role as well.

Mr. Herrod in Utah said that after an internal memorandum from the United States Department of the Interior was made public last month, discussing sites around the country potentially suitable for federal protection as national monuments — including two sites in Utah — support for all kinds of statements against federal authority gained steam.

And at the Tenth Amendment Center, the group’s founder, Michael Boldin, said he thought states that had bucked federal authority over the last decade by legalizing medical marijuana, even as federal law held all marijuana use and possession to be illegal, had set the template in some ways for the effort now. And those states, Mr. Boldin said, were essentially validated in their efforts last fall when the Justice Department said it would no longer make medical marijuana a priority in the states were it was legal. Nullification, he said, was shown to work.

Whether the political impulse of states’ rights and nullification will become a direct political fault line in the national elections this fall is uncertain, said Mr. Woods of the von Mises institute.

But in Utah, at least, a key indicator is coming much sooner. The party caucuses to determine, among other things, whether candidates will face primary elections, are to be held next Tuesday, and Mr. Herrod said the states rights’ crowd would attend and push for change.

“Those politicians who don’t understand that things are different are in big trouble because a few people showing up to caucus can have a big influence,” Mr. Herrod said.

A spokeswoman for Gov. Gary R. Herbert, a Republican — who signed a firearms law like South Dakota’s last month declaring exemption from federal regulation for guns made and used within the state — said Mr. Herbert was still studying the new batch of bills passed this week and had not yet made decisions about signing them.

HB 1433 – AS INTRODUCED

2010 SESSION

10-2351

04/09

HOUSE BILL 1433

AN ACT relative to lawful commerce in firearms, including manufacture and sale, in New Hampshire.

SPONSORS: Rep. Hinkle, Hills 19; Rep. Kolodziej, Rock 4; Rep. Daniels, Hills 6; Rep. Sapareto, Rock 5

COMMITTEE: Criminal Justice and Public Safety

ANALYSIS

This bill exempts firearms, firearm accessories, and ammunition manufactured in New Hampshire from federal law and regulation.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

10-2351

04/09

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Ten

AN ACT relative to lawful commerce in firearms, including manufacture and sale, in New Hampshire.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 Legislative Declarations of Authority. The legislature declares that the authority for this act is the following:

I. The 10th Amendment to the United States constitution guarantees to the states and their people all powers not granted to the federal government elsewhere in the constitution and reserves to the state and people of New Hampshire certain powers as they were understood at the time that New Hampshire ratified the Bill of Rights, particularly the 10^th Amendment in 1790. The guaranty of those powers is a matter of contract between the state and people of New Hampshire and the United States as of the time that the compact with the United States was agreed upon and adopted by New Hampshire and the United States.

II. The Ninth Amendment to the United States constitution guarantees to the people rights not granted in the constitution and reserves to the people of New Hampshire certain rights as they were understood at the time that New Hampshire ratified the Bill of Rights, particularly the 10^th Amendment in 1790. The guaranty of those rights is a matter of contract between the state and people of New Hampshire and the United States as of the time that the compact with the United States was agreed upon and adopted by New Hampshire and the United States.

III. The regulation of intrastate commerce is vested in the states under the 9th and 10th amendments to the United States constitution, particularly if not expressly preempted by federal law. Congress has not expressly preempted state regulation of intrastate commerce pertaining to the manufacture, on an intrastate basis, of firearms, firearms accessories, and ammunition.

IV. The Second Amendment to the United States constitution reserves to the people the right to keep and bear arms as that right was understood at the time that New Hampshire ratified, in 1790, the Bill of Rights, particularly the Second Amendment, and the guaranty of the right is a matter of contract between the state and people of New Hampshire and the United States as of the time that the compact with the United States was agreed upon and adopted by New Hampshire and the United States, by that said ratification.

V. New Hampshire, having already established in 1784 its own constitution, with Articles 2 and 7 guaranteeing that New Hampshire citizens had the right to defend and protect life and property and that these rights would not be superseded by the powers granted to the Congress of the United States of America, such that when New Hampshire ratified the United States constitution these rights were clearly understood to exist in the State of New Hampshire. Article 2 of the New Hampshire Bill of Rights: Natural Rights. All men have certain natural, essential, and inherent rights among which are, the enjoying and defending life and liberty; acquiring, possessing, and protecting, property; and, in a word, of seeking and obtaining happiness. Article 7 of the New Hampshire bill of rights clearly provides that the people of this state have the sole and exclusive right of governing themselves as a free, sovereign, and independent state; and do, and forever hereafter shall, exercise and enjoy every power, jurisdiction, and right, pertaining thereto, which is not, or may not hereafter be, by them expressly delegated to the United States of America in congress assembled, June 2, 1784.

VI. Article 2a of the New Hampshire Bill of Rights: The Bearing of Arms. All persons have the right to keep and bear arms in defense of themselves, their families, their property and the state, December 1, 1982. This article was an explicit recognition of the rights implicit in Article 2 as it was adopted in 1784.

2 New Chapter; Lawful Commerce in Firearms. Amend RSA by inserting after chapter 159-D the following new chapter:

CHAPTER 159-E

LAWFUL COMMERCE IN FIREARMS

159-E:1 Definitions. As used in this chapter, the following definitions apply:

I. “Firearm” means any weapon, including a starter gun, which will, or is designed to, or may readily be converted to expel a projectile by the action of an explosive. “Firearm” shall include the frame or receiver of any such weapon, or any firearm muffler or firearm silencer.

II. “Firearms accessories” means items that are used in conjunction with or mounted upon a firearm but are not essential to the basic function of a firearm, including but not limited to telescopic or laser sights, magazines, flash or sound suppressors, folding or aftermarket stocks and grips, speedloaders, ammunition carriers, optics for target identification, and lights for target illumination.

III. “Generic and insignificant parts” includes but is not limited to springs, screws, nuts, and pins.

IV. “Manufactured” means that a firearm, a firearm accessory, or ammunition has been created from basic materials for functional usefulness, including but not limited to forging, casting, machining, molding, or other processes for working materials.

159-E:2 Prohibitions. Notwithstanding any other law to the contrary, a personal firearm, a firearm accessory, or ammunition that is manufactured commercially or privately in New Hampshire and that remains within the state of New Hampshire is not subject to federal law or taxation, or federal regulation, including registration, under the authority of congress to regulate interstate commerce. It is declared by the legislature that those items have not traveled in interstate commerce. This section applies to a firearm, a firearm accessory, or ammunition that is manufactured in New Hampshire from basic materials and that can be manufactured without the inclusion of any significant parts imported from another state. Generic and insignificant parts that have other manufacturing or consumer product applications are not firearms, firearms accessories, or ammunition, and their importation into New Hampshire and incorporation into a firearm, a firearm accessory, or ammunition manufactured in New Hampshire does not subject the firearm, firearm accessory, or ammunition to federal regulation. It is declared by the legislature that basic materials, such as, but not limited to, unmachined steel and unshaped wood, are not firearms, firearms accessories, or ammunition and are not subject to congressional authority to regulate firearms, firearms accessories, and ammunition under interstate commerce as if they were actually firearms, firearms accessories, or ammunition. The authority of congress to regulate interstate commerce in basic materials does not include authority to regulate firearms, firearms accessories, and ammunition made in New Hampshire from those materials. Firearms accessories that are imported into New Hampshire from another state and that are subject to federal regulation as being in interstate commerce do not subject a firearm to federal regulation under interstate commerce because they are attached to or used in conjunction with a firearm in New Hampshire.

159-E:3 Marketing of Firearms. A firearm manufactured or sold in New Hampshire under this chapter shall have the words “Made in New Hampshire” clearly stamped, inscribed, or otherwise marked on a central part of the firearm, such as the receiver or frame.

159-E:4 Applicability. This chapter shall apply to firearms, firearms accessories, and ammunition that are manufactured, as defined in this chapter, and retained in New Hampshire after January 1, 2011.

3 Effective Date. This act shall take effect January 1, 2011.

HB 1343 – AS INTRODUCED

2010 SESSION

10-2280

10/03

HOUSE BILL 1343

AN ACT establishing a joint committee on the constitutionality of acts, orders, laws, statutes, regulations, and rules of the government of the United States of America in order to protect state sovereignty.

SPONSORS: Rep. Itse, Rock 9; Rep. Ingbretson, Graf 5; Rep. Comerford, Rock 9; Rep.�K.�Roberts, Ches 3

COMMITTEE: State-Federal Relations and Veterans Affairs

ANALYSIS

This bill establishes a joint committee of the legislature to consider the constitutionality of acts, orders, laws, statutes, regulations, and rules by the government of the United States including the legislative, executive, and judicial branches, and to consider the actions necessary to protect the sovereignty of the state of New Hampshire.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

10-2280

10/03

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Ten

AN ACT establishing a joint committee on the constitutionality of acts, orders, laws, statutes, regulations, and rules of the government of the United States of America in order to protect state sovereignty.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 Findings.

I. The Constitution of the State of New Hampshire, Part 1, Article 7 declares that the people of this State have the sole and exclusive right of governing themselves as a free, sovereign, and independent State; and do, and forever hereafter shall, exercise and enjoy every power, jurisdiction, and right, pertaining thereto, which is not, or may not hereafter be, by them expressly delegated to the United States of America in congress assembled.

II. The Constitution of the State of New Hampshire, Part 2, Article 1 declares that the people inhabiting the territory formerly called the province of New Hampshire, do hereby solemnly and mutually agree with each other, to form themselves into a free, sovereign and independent body-politic, or State, by the name of The State of New Hampshire.

III. Each State acceded to the compact titled the Constitution for the United States of America as a State, and is an integral party, its co-States forming, as to itself, the other party.

IV. The State of New Hampshire when ratifying the Constitution for the United States of America recommended as a change, “First That it be Explicitly declared that all Powers not expressly & particularly Delegated by the aforesaid are reserved to the several States to be, by them Exercised.”

V. The other States that included recommendations, to wit Massachusetts, New York, North�Carolina, Rhode Island, and Virginia, included an identical or similar recommended change.

VI. These recommended changes were incorporated as the ninth amendment, the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people, and the tenth amendment, 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, to the Constitution for the United States of America.

VII. Therefore, the several States composing the United States of America, are not united on the principle of unlimited submission to their General Government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a General Government for special purposes, delegated to that government certain definite powers, reserving, each State to itself, all remaining powers for their own self-government.

VIII. The construction applied by the General Government, as is evidenced by sundry of their proceedings, to those parts of the Constitution of the United States which delegate to Congress a power “to lay and collect taxes, duties, imports, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,” and “to make all laws which shall be necessary and proper for carrying into execution the powers vested by the Constitution in the government of the United States, or in any department or officer thereof,” goes to the destruction of all limits prescribed to their power by the Constitution. Therefore, words meant by the instrument to be subsidiary only to the execution of limited powers, ought not to be so construed as themselves to give unlimited powers, nor a part to be so taken as to destroy the whole residue of that instrument, and whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force.

IX. No power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the United States by the Constitution, nor prohibited by it to the States, all lawful powers respecting the same did of right remain, and were reserved to the States or the people. Furthermore, also they guarded against all abridgment by the United States of the freedom of religious opinions and exercises, freedom of speech and of the press, and retained to themselves the right of protecting the same by one of the amendments to the Constitution, which expressly declares, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press;” thereby guarding in the same sentence, and under the same words, the freedom of religion, of speech, and of the press: insomuch, that whatever violated either, throws down the sanctuary which covers the others, and that libels, falsehood, and defamation, equally with heresy and false religion, are withheld from the cognizance of federal tribunals.

X. Therefore, all acts of Congress of the United States which do abridge the freedom of religion, freedom of speech, freedom of the press, are not law, but are altogether void, and of no force.

XI. The Constitution of the United States, having delegated to Congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies, and felonies committed on the high seas, offenses against the law of nations, and slavery, and no other crimes whatsoever.

XII. Therefore, all acts of Congress, the orders of the Executive or orders of the Judiciary which assume to create, define, or punish crimes, other than those so enumerated in the Constitution are altogether void, and of no force; and that the power to create, define, and punish such other crimes is reserved, and, of right, appertains solely and exclusively to the respective States, each within its own territory.

XIII. The State of New Hampshire when ratifying the Constitution for the United States of America recommended as a change, “Twelfth Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.”

XIV. The other States that included recommendations, to wit New York, Pennsylvania, North Carolina, Rhode Island, and Virginia, included an identical or similar recommended change.

XV. These recommended changes were incorporated as the second amendment, and, the United States Supreme Court has ruled in Heller v. The District of Columbia (2008) that the right to keep and bear arms is an individual right of the people.

XVI. Therefore, all acts of Congress, the orders of the Executive or orders of the Judiciary which assume to regulate or license the ownership of firearms manufactured, sold, and held within the jurisdiction of any State are altogether void, and of no force; and that the power to regulate or license the ownership of firearms manufactured, sold, and held within the jurisdiction of any State is reserved, and, of right, appertains solely and exclusively to the respective States, each within its own territory subject to the limitations of its own Constitution.

XVII. The United States Supreme Court has ruled in New York v. United States, 505 U.S. 144 (1992), that congress may not simply commandeer the legislative and regulatory processes of the states.

XVIII. Therefore, all compulsory federal legislation that directs states to comply under threat of civil or criminal penalties or sanctions or that requires states to pass legislation or lose federal funding are prohibited.

XIX. The Constitution for the United States of America, Article VI, states “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.”

XX. Therefore, laws enacted, but not pursuant to the Constitution for the United States, Article I, Section 8, are not part of the supreme law of the land and are not binding upon the States comprising the United States or the citizens thereof.

XXI. The Constitution for the United States of America, Article II, Section 2, Clause 2 gives Congress the authority to authorize inferior officers of the government of the United States of America not enumerated in the Constitution by law and for them to be appointed by the manner proscribed by law enacted by the Congress, and that the Constitution gives not such authority to the President, and therefore, no officer not authorized by Constitution or by law or exercising a power not authorized by the Constitution, nor their subordinates shall have any authority in, or over the sovereign State of New Hampshire, nor any inhabitant or resident thereof, nor any franchises created under the authority thereof when within the borders of the State of New Hampshire.

XXII. The government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.

XXIII. Therefore the Legislatures and Legislators of the several States have the right and duty to consider the constitutionality of any legislative act or order promlugated by the government of the United States of America; and to protect their governments, inhabitants, and residents and instruments created under their authority by prohibiting, and if necessary punishing the enforcement of any Acts by the Congress of the United States of America, Executive Order of the President of the United States of America, or Judicial Order by the Judicatories of the United States of America which assumes a power not delegated to the government of United States of America by the Constitution for the United States of America. Acts which would cause such a prohibition or punishment include, but are not limited to:

(a) Requiring the States to create a national identification card system.

(b) Requiring involuntary servitude, or governmental service other than a draft during a declared war, or pursuant to, or as an alternative to, incarceration after due process of law.

(c) Requiring involuntary servitude or governmental service of persons under the age of 18 other than pursuant to, or as an alternative to, incarceration after due process of law.

(d) Any act regarding religion; further limitations on freedom of political speech; or further limitations on freedom of the press.

(e) Further infringements on the right to keep and bear arms including prohibitions of type or quantity of arms or ammunition.

XXIV. The Constitution for the United States of America guarantees to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive, when the Legislature cannot be convened, against domestic violence.

XXV. Therefore; there exists a class of Acts by the Congress of the United States, Executive Orders of the President of the United States of America, or Judicial Orders by the Judicatories of the United States of America, that constitute a direct challenge to the Constitution for the United States of America by the government of the United States including, but not limited to:

(a) Establishing martial law or a state of emergency within one of the States comprising the United States of America without the consent of the legislature of that State or authority derived from that body.

(b) Surrendering any power delegated or not delegated to any corporation or foreign government.

2 Committee Established to Consider the Constitutionality of Acts and Orders by the Government of the United States of America; State Sovereignty.

I. There is hereby established a joint committee on the constitutionality of acts, orders, laws, statutes, regulations, and rules of the government of the United States. This joint committee of the legislature shall consider the constitutionality of acts, orders, laws, statutes, regulations, and rules by the government of the United States including the legislative, executive, and judicial branches of government, and consider the actions necessary to protect the sovereignty of the state of New�Hampshire and the liberty of its citizens by restraining the government of the United States to its constitutional limits. The committee shall be comprised of 3 senators chosen by the senate president and 8 representatives chosen by the speaker of the house of representatives. The members shall be chosen in a manner that reflects the proportions of the party affiliations of the membership of each chamber.

II. The joint committee on the constitutionality of acts, orders, laws, statutes, regulations, and rules of the government of the United States shall:

(a) Take recommendations from individual legislators of acts, orders, laws, statutes, regulations, and rules of the government of the United States to be considered.

(b) Meet regularly to hold public hearings on the constitutionality of acts, orders, laws, statutes, regulations, and rules of the government of the United States.

(c) When necessary propose legislation to prohibit, and if necessary, punish the enforcement of unconstitutional acts, orders, laws, statutes, regulations, and rules of the government of the United States.

III. The joint committee on the constitutionality of acts, orders, laws, statutes, regulations, and rules of the government of the United States shall communicate regularly with committees established for similar purposes by the other states comprising the United States of America.

IV. Nothing in this act shall be construed to prevent any individual legislator from communication with legislators of any other state comprising the United States of America regarding the constitutionality of acts, orders, laws, statutes, regulations, and rules of the government of the United States; to prevent any legislator from introducing legislation to protect the sovereignty of the State of New Hampshire or the liberty of its citizens from unconstitutional of acts or orders of the government of the United States; or to prevent the governor from challenging the constitutionality of acts, orders, laws, statutes, regulations, and rules of the government of the United States through the office of the attorney general of the state of New Hampshire.

3 Effective Date. This act shall take effect upon its passage.

1.  The People created the federal government to be their agent for certain enumerated purposes only.  The Constitutional ratifying structure was created so it would be clear that it was the People, and not the States, that were doing the ratifying.

2.  The Tenth Amendment defines the total scope of federal power as being that which has been delegated by the people to the federal government, and also that which is absolutely necessary to advancing those powers specifically enumerated in the Constitution of the United States.  The rest is to be handled by the state governments, or locally, by the people themselves.

3.  The Constitution does not include a congressional power to override state laws.  It does not give the judicial branch unlimited jurisdiction over all matters.  It does not provide Congress with the power to legislate over everything. This is verified by the simple fact that attempts to make these principles part of the Constitution were soundly rejected by its signers.

4.  If the Congress had been intended to carry out anything they claim would promote the “general welfare,” what would be the point of listing its specific powers in Article I, Section 8, since these would’ve already been covered?

5.  James Madison, during the Constitutional ratification process, drafted the “Virginia Plan” to give Congress general legislative authority and to empower the national judiciary to hear any case that might cause friction among the states, to give the congress a veto over state laws, to empower the national government to use the military against the states, and to eliminate the states’ accustomed role in selecting members of Congress.  Each one of these proposals was soundly defeated.  In fact, Madison made many more attempts to authorize a national veto over state laws, and these were repeatedly defeated as well.

6.  The Tenth Amendment was adopted after the Constitutional ratification process to emphasize the fact that the states remained individual and unique sovereignties; that they were empowered in areas that the Constitution did not delegate to the federal government.  With this in mind, any federal attempt to legislate beyond the Constitutional limits of Congress’ authority is a usurpation of state sovereignty – and unconstitutional.

7.  Tragically, the Tenth Amendment has become almost a nullity at this point in our history, but there are a great many reasons to bring it to the forefront.  Most importantly, though, we must keep in mind that the Founders envisioned a loose confederation of states – not a one-size-fits-all solution for everything that could arise.  Why?  The simple answer lies in the fact that they had just escaped the tyranny of a king who thought he knew best how to govern everything – including local colonies from across an ocean.

8.  Governments and political leaders are best held accountable to the will of the people when government is local. Second, the people of a state know what is best for them; they do not need bureaucrats, potentially thousands of miles away, governing their lives.

9.  A constitution which does not provide strict limits is just the thing any government would be thrilled to have, for, as Lord Acton once said, “Power tends to corrupt, and absolute power corrupts absolutely.”

10.  We agree with historian Kevin Gutzman, who has said that those who would give us a “living” Constitution are actually giving us a dead one, since such a thing is completely unable to protect us against the encroachments of government power.

(Special thanks to TenthAmendmentCenter.com)

HCR 6 – AS INTRODUCED

2009 SESSION

09-0274

09/01

HOUSE CONCURRENT RESOLUTION 6

A RESOLUTION affirming States’ rights based on Jeffersonian principles.

SPONSORS: Rep. Itse, Rock 9; Rep. Ingbretson, Graf 5; Rep. Comerford, Rock 9; Sen. Denley, Dist 3

COMMITTEE: State-Federal Relations and Veterans Affairs

ANALYSIS

This house concurrent resolution affirms States’ rights based on Jeffersonian principles.

09-0274

09/01

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Nine

A RESOLUTION affirming States’ rights based on Jeffersonian principles.

Whereas the Constitution of the State of New Hampshire, Part 1, Article 7 declares that the people of this State have the sole and exclusive right of governing themselves as a free, sovereign, and independent State; and do, and forever hereafter shall, exercise and enjoy every power, jurisdiction, and right, pertaining thereto, which is not, or may not hereafter be, by them expressly delegated to the United States of America in congress assembled; and

Whereas the Constitution of the State of New Hampshire, Part 2, Article 1 declares that the people inhabiting the territory formerly called the province of New Hampshire, do hereby solemnly and mutually agree with each other, to form themselves into a free, sovereign and independent body-politic, or State, by the name of The State of New Hampshire; and

Whereas the State of New Hampshire when ratifying the Constitution for the United States of America recommended as a change, “First That it be Explicitly declared that all Powers not expressly & particularly Delegated by the aforesaid are reserved to the several States to be, by them Exercised;” and

Whereas the other States that included recommendations, to wit Massachusetts, New York, North Carolina, Rhode Island and Virginia, included an identical or similar recommended change; and

Whereas these recommended changes were incorporated as the ninth amendment, the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people, and the tenth amendment, 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, to the Constitution for the United States of America; now, therefore, be it

Resolved by the House of Representatives, the Senate concurring:

That the several States composing the United States of America, are not united on the principle of unlimited submission to their General Government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a General Government for special purposes, — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force; that to this compact each State acceded as a State, and is an integral party, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress; and

That the Constitution of the United States, having delegated to Congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies, and felonies committed on the high seas, and offences against the law of nations, slavery, and no other crimes whatsoever; and it being true as a general principle, and one of the amendments to the Constitution having also declared, that “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,” therefore all acts of Congress which assume to create, define, or punish crimes, other than those so enumerated in the Constitution are altogether void, and of no force; and that the power to create, define, and punish such other crimes is reserved, and, of right, appertains solely and exclusively to the respective States, each within its own territory; and

That it is true as a general principle, and is also expressly declared by one of the amendments to the Constitution, that “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;” and that no power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the United States by the Constitution, nor prohibited by it to the States, all lawful powers respecting the same did of right remain, and were reserved to the States or the people: that thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use should be tolerated, rather than the use be destroyed. And thus also they guarded against all abridgment by the United States of the freedom of religious opinions and exercises, and retained to themselves the right of protecting the same. And that in addition to this general principle and express declaration, another and more special provision has been made by one of the amendments to the Constitution, which expressly declares, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press:” thereby guarding in the same sentence, and under the same words, the freedom of religion, of speech, and of the press: insomuch, that whatever violated either, throws down the sanctuary which covers the others, and that libels, falsehood, and defamation, equally with heresy and false religion, are withheld from the cognizance of federal tribunals. That, therefore, all acts of Congress of the United States which do abridge the freedom of religion, freedom of speech, freedom of the press, are not law, but are altogether void, and of no force; and

That the construction applied by the General Government (as is evidenced by sundry of their proceedings) to those parts of the Constitution of the United States which delegate to Congress a power “to lay and collect taxes, duties, imports, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,” and “to make all laws which shall be necessary and proper for carrying into execution the powers vested by the Constitution in the government of the United States, or in any department or officer thereof,” goes to the destruction of all limits prescribed to their power by the Constitution: that words meant by the instrument to be subsidiary only to the execution of limited powers, ought not to be so construed as themselves to give unlimited powers, nor a part to be so taken as to destroy the whole residue of that instrument: that the proceedings of the General Government under color of these articles, will be a fit and necessary subject of revisal and correction; and

That a committee of conference and correspondence be appointed, which shall have as its charge to communicate the preceding resolutions to the Legislatures of the several States; to assure them that this State continues in the same esteem of their friendship and union which it has manifested from that moment at which a common danger first suggested a common union: that it considers union, for specified national purposes, and particularly to those specified in their federal compact, to be friendly to the peace, happiness and prosperity of all the States: that faithful to that compact, according to the plain intent and meaning in which it was understood and acceded to by the several parties, it is sincerely anxious for its preservation: that it does also believe, that to take from the States all the powers of self-government and transfer them to a general and consolidated government, without regard to the special delegations and reservations solemnly agreed to in that compact, is not for the peace, happiness or prosperity of these States; and that therefore this State is determined, as it doubts not its co-States are, to submit to undelegated, and consequently unlimited powers in no man, or body of men on earth: that in cases of an abuse of the delegated powers, the members of the General Government, being chosen by the people, a change by the people would be the constitutional remedy; but, where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non foederis), to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them: that nevertheless, this State, from motives of regard and respect for its co-States, has wished to communicate with them on the subject: that with them alone it is proper to communicate, they alone being parties to the compact, and solely authorized to judge in the last resort of the powers exercised under it, Congress being not a party, but merely the creature of the compact, and subject as to its assumptions of power to the final judgment of those by whom, and for whose use itself and its powers were all created and modified: that if the acts before specified should stand, these conclusions would flow from them: that it would be a dangerous delusion were a confidence in the men of our choice to silence our fears for the safety of our rights: that confidence is everywhere the parent of despotism — free government is founded in jealousy, and not in confidence; it is jealousy and not confidence which prescribes limited constitutions, to bind down those whom we are obliged to trust with power: that our Constitution has accordingly fixed the limits to which, and no further, our confidence may go. In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution. That this State does therefore call on its co-States for an expression of their sentiments on acts not authorized by the federal compact. And it doubts not that their sense will be so announced as to prove their attachment unaltered to limited government, whether general or particular. And that the rights and liberties of their co-States will be exposed to no dangers by remaining embarked in a common bottom with their own. That they will concur with this State in considering acts as so palpably against the Constitution as to amount to an undisguised declaration that that compact is not meant to be the measure of the powers of the General Government, but that it will proceed in the exercise over these States, of all powers whatsoever: that they will view this as seizing the rights of the States, and consolidating them in the hands of the General Government, with a power assumed to bind the States, not merely as the cases made federal, (casus foederis,) but in all cases whatsoever, by laws made, not with their consent, but by others against their consent: that this would be to surrender the form of government we have chosen, and live under one deriving its powers from its own will, and not from our authority; and that the co-States, recurring to their natural right in cases not made federal, will concur in declaring these acts void, and of no force, and will each take measures of its own for providing that neither these acts, nor any others of the General Government not plainly and intentionally authorized by the Constitution, shall be exercised within their respective territories; and

That the said committee be authorized to communicate by writing or personal conferences, at any times or places whatever, with any person or person who may be appointed by any one or more co-States to correspond or confer with them; and that they lay their proceedings before the next session of the General Court; and

That any Act by the Congress of the United States, Executive Order of the President of the United States of America or Judicial Order by the Judicatories of the United States of America which assumes a power not delegated to the government of United States of America by the Constitution for the United States of America and which serves to diminish the liberty of the any of the several States or their citizens shall constitute a nullification of the Constitution for the United States of America by the government of the United States of America. Acts which would cause such a nullification include, but are not limited to:

I. Establishing martial law or a state of emergency within one of the States comprising the United States of America without the consent of the legislature of that State.

II. Requiring involuntary servitude, or governmental service other than a draft during a declared war, or pursuant to, or as an alternative to, incarceration after due process of law.

III. Requiring involuntary servitude or governmental service of persons under the age of 18 other than pursuant to, or as an alternative to, incarceration after due process of law.

IV. Surrendering any power delegated or not delegated to any corporation or foreign government.

V. Any act regarding religion; further limitations on freedom of political speech; or further limitations on freedom of the press.

VI. Further infringements on the right to keep and bear arms including prohibitions of type or quantity of arms or ammunition; and

That should any such act of Congress become law or Executive Order or Judicial Order be put into force, all powers previously delegated to the United States of America by the Constitution for the United States shall revert to the several States individually. Any future government of the United States of America shall require ratification of three quarters of the States seeking to form a government of the United States of America and shall not be binding upon any State not seeking to form such a government; and

That copies of this resolution be transmitted by the house clerk to the President of the United States, each member of the United States Congress, and the presiding officers of each State’s legislature.