From guns to health care, states’ rights gain ground

Some scholars say push more bark than bite

Governor Mike Rounds signed a bill declaring federal firearms laws invalid in South Dakota if a gun is made there. Governor Mike Rounds signed a bill declaring federal firearms laws invalid in South Dakota if a gun is made there.
By Kirk Johnson
New York Times / March 17, 2010

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NEW YORK — Whether it’s a correctly called a movement, a backlash, or political theater, state declarations of their rights — or in some cases denunciations of federal authority, amounting to the same thing — are on a roll.

Governor Mike Rounds of South Dakota, a Republican, signed a bill into law 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 overhaul health care, 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, Republican of 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 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 the state can limit federal law enforcement authority, even on federal lands.

“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, president of the Montana Shooting Sports Association, which led the drive last year for one of the first “firearms freedoms.’’

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. Herrod said he had spoken at Tea Party rallies, for example, but 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 have 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 in Auburn, Ala., that researches what it calls “the scholarship of liberty.’’

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.

“Article 6 says that that federal law is supreme and that if there’s a conflict, federal law prevails,’’ said Professor Ruthann Robson, who teaches constitutional law at the City University of New York School of Law.

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