Pennsylvania Memo: HB357, Right to Bear Arms Protection Act

Memo: HOUSE BILL 357, RIGHT TO BEAR ARMS PROTECTION ACT

TO: PENNSYLVANIA VOTERS
FROM: BENJAMIN GROSS, LEGAL DIRECTOR, PENNSYLVANIA TENTH AMENDMENT CENTER
DATE: MARCH 1, 2013
SUBJECT: HOUSE BILL 357, RIGHT TO BEAR ARMS PROTECTION ACT

In mid-January, State Representative Daryl Metcalfe proposed the Right to Bear Arms Protection Act (HB 357) which nullifies all federal firearms laws adopted after December 31, 2012.  HB 357, which provides criminal penalties for attempted enforcement of unconstitutional gun laws in Pennsylvania, amassed 69 co-sponsors in the last month.

Despite the popularity of HB 357, a number of Republican and Democratic state legislators have refused to join as cosponsors, invariably citing the Supremacy Clause for the proposition that federal laws are supreme and only federal courts can say otherwise.  The Supremacy Clause is one of the more abused and misrepresented clauses in the Constitution.   Only laws “which shall be made in Pursuance thereof” are supreme, not any old laws passed by Congress. Critics, including those who teach constitutional law in our nation’s universities often repeat this common but nonsensical viewpoint, given that its logical conclusion makes the federal government’s discretion the only limit of its powers.  No State would have ratified a Constitution wherein Congress could pass unconstitutional laws that were then upheld by its own judicial branch.

As Alexander Hamilton explained at New York’s ratifying convention that, on the one hand, the “acts of the United States … will be absolutely obligatory as to all the proper objects and powers of the general government,” it is also true that “the laws of Congress are restricted to a certain sphere, and when they depart from this sphere, they are no longer supreme or binding.”  Or, as noted by James Madison in the Virginia Report of 1800, “The states, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity, that there can be no tribunal above their authority, to decide in the last resort, whether the compact made by them be violated; and, consequently, that, as the parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition.”

Two lists follow*.  The first contains the names of State Representatives who understand that our natural right to own and bear arms is inviolable and expressly recognized by the Second Amendment to the U.S. Constitution and Article I, Section 21 of the Pennsylvania Constitution.

The second list contain those State Representatives who are either openly hostile to gun rights or, just as bad, pay lip service to gun rights but then do nothing to protect them.

* Note that the Pennsylvania Tenth Amendment Center agrees to circulate updated lists when notified of new co-sponsors of HB 357.