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home : opinions : opinions May 24, 2016

2/2/2013 1:05:00 PM
Letter: Wikipedia not a great source site for serious study


A comment offered in response to an article concerning Yavapai County Sheriff Scott Mascher’s confirmation that he would refuse to ‘participate or cooperate with any unconstitutional order that will infringe upon our Second Amendment rights’, sought to discredit the legal efforts of some of our state and local officials on the basis of Article 6 Clause 2 of our US Constitution.

The commenter sited Wikipedia as their source. While Wikipedia is a fun tool for cursory examination of a variety of topics, it is not a great source site for serious study and will often result in a failing grade at the college level if used to substantiate pretty much anything. Most college professors hate it, and grade accordingly. On an issue such as this a person is far better served by investigating legal and constitutional summaries and recognized legal journals.

As was pointed out in that comment, ‘The Supremacy Clause only applies if Congress is acting in pursuit of its constitutionally authorized powers. Federal laws are valid and are supreme, so long as those laws were adopted in pursuance of-that is, consistent with-the Constitution.’

If the Supremacy Clause were a blanket amnesty granting federal immunity from all state regulation, states would possibly be prevented from taxing the income of federal employees, this is however, an idea rejected by the Court in Graves v. New York ex rel. O’Keefe in 1939. The current interpretation can perhaps best be found in the decision of the Court from North Dakota v. United States in 1990, “..state regulation is invalid only if it regulates the United States directly or discriminates against the Federal Government or those with whom it deals.”

Also note this opinion from Gary Lawson, Professor of Law at Boston University School of Law, “While the federal government can prevent states from interfering with federal operations, whether through taxes or otherwise, that does not necessarily mean that the Supremacy Clause is the basis upon which Congress exercises its power to protect federal operations. The valid exercise of any one of Congress’s enumerated powers can constitute the constitutional source of a statute that effectively preempts a state law. In particular, the Necessary and Proper Clause would be a vehicle for a statute that explicitly disables state law from operating in an area of federal concern. Thus, for an explicitly preemptive statute to be constitutional, it must be “necessary and proper for carrying into Execution” some enumerated federal power, subject, of course, to the constitutional limits of the Necessary and Proper Clause itself.”

It is reasonable then to assume that certain State laws or decisions regulating, or choosing not to regulate firearms, would preempt federal statutes on the basis of the Second Amendment’s prohibition against Congress infringing on a citizen’s right to keep and bear arms, so long as those state regulations or laws uphold the language and principles of the Second Amendment its self. Infringing on the right to keep and bear arms is not a “valid exercise of any one of Congress’s enumerated powers”. As noted by a political writer for Examiner.com, Duane Sipe, “.. With a full understanding of Article 6, Paragraph 2, the Second Amendment might better be interpreted as “the right of the people to keep and bear arms shall not be encroached upon in any way by any national, state, or local legislative act, or constitutional language. period!”

The commenter was correct, ultimately, under the Supremacy Clause, it is up to the courts to figure out whether or not state and federal rules are in conflict. That is not however a bar to the States attempting to maintain a degree of sovereignty, in fact I would hope the States would challenge federal supremacy at every turn, forcing the fed to prove its case in court where ever possible, it’s what keeps our system healthy and honest.

And for those who fear that the Supremacy Clause gives the fed too much power in the arena of treaties, understand that the verbiage does NOT mean that treaties are the supreme law if they run afoul of our constitution. The Supreme Court has already clearly indicated no treaty approved by the Senate, and no executive agreements entered into through the President’s authority can create obligations that infringe upon our Constitutional guarantees as are found and protected in our Bill of Rights. See the opinions of the Court in Reid v. Covert in 1957.

I applaud Sheriff Mascher for honoring the obligation of his oath to ‘Uphold and Defend’ our Constitution. His decision as it applies to the Second Amendment is supported by case law and is in keeping with the best traditions and spirit of common law. Those who would call him a hypocrite for not applying the same policy toward other State Statutes are missing the point of the Constitutional nature of the principle he is standing on. There is no hypocrisy on display here, just sound moral and legal judgment, exactly what he was elected for. His decision, and the decision of a growing number of County Sheriffs nationwide, will ultimately, if necessary, be put to the test in court. I believe they will win out in the end.

David Gordon


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Reader Comments

Posted: Tuesday, February 12, 2013
Article comment by: itsy bitsy Spider

True. I was just idly wondering what recourse States would have against a stacked court. Thanks for replying, Mr. Gordon.

Posted: Monday, February 11, 2013
Article comment by: David Gordon

@ Mr. Spider, you asked if I thought the provision for 2/3's of state legislatures to convene a Constitutional convention was intended to guard against a biased Supreme Court.

I don’t personally think the Supreme Court was the focus, no. I think it’s pretty self-evident that the original intent of the Founders was to create a document that was difficult, but not impossible, for the people to alter. In Federalist #43 Madison said the intention was to strike a balance between constant change, and inflexibility. “It Guards equally against that extreme facility which would render the Constitution too mutable and that extreme difficulty which might perpetuate its discovered faults.” He specifically makes mention of the inflexibility of the original Articles of Confederation which required amendments to be ratified by a unanimous vote, and how that requirement left the entire enterprise at the mercy of any single member of the Confederation.

In Madison’s “Notes of Debate in the Federal Convention of 1787”, he reveals he was not initially entirely comfortable with the amendment convention idea, it was after extensive debate that language proposed by Madison himself was passed. It was seconded by Hamilton, and is recognized as the “two-thirds” rules, and the three-fourths requirement for ratification of any proposed amendments, that we have today.
I personally think the whole exercise could be viewed as a pretty weak bulwark against a biased Court, something that would only have benefit under pretty extreme conditions.

I don’t think anyone should underestimate the difficulty of getting three quarters of the states to agree on anything.

Posted: Sunday, February 10, 2013
Article comment by: itsy bitsy Spider

Re "IED seems more of a hoax or a joke," Ms Heartman. It's possible.

IED's president & founder, Bertell Ollman, probably does enjoy twitting ultra-conservatives. He created the site in 2006 specifically to counter the NED--a right-wing, anti-communist, private, federally-funded creation of the Reagan Administration. But Ollman is a real professor of Political Science at NYU and seems to take himself very seriously (see www/ratemyprofessors.com/showratings.jsp?tid=247988).

Also, the basic concepts go way back. Charles Austin Beard (An Economic Interpretation of the Constitution [1913]) is considered the Progressive Movement's most scholarly exponent of the theory merchants and large plantation owners slanted the Constitution to benefit themselves at the expense of small farmers and tradesmen. The most scholarly rebuttal of Beard's research is by Forrest McDonald (We The People: The Economic Origins of the Constitution [1958]). You can find a brief rundown of the entire controversy in the introduction to Robert A. McGuire's latest addition (To Form A More Perfect Union: A New Economic Interpretation [2003]).

One question, Mr.Gordon: In your opinion, was the provision for 2/3's of state legislatures to convene a Constitutional convention intended to guard against a biased Supreme Court?

Posted: Friday, February 8, 2013
Article comment by: yep... not a lawyer... .

skin is too thin...

indeed it is coincidental that a guy with the same name as a local lawyer lent his opinion on a matter related to a legal/constitutional item. not to far of a stretch to consider that person might have a background in law is it? once explained i simply remarked it was a coincidence... nothing more.

as far as the medium concept... you can only infer so much from a persons writings and given that time passes and people change- to hold the writings of mere fallible humans up as moments in time that shall forever direct us regardless of the passage of time... it rather spooky and limiting.

as far as misleading subterfuge... it was you that took it upon yourself to attempt to discredit a very portion of the writings that the same supporters of the 2nd amendment hold so dear. and then in your own words state that " The commenter was correct, ultimately, under the Supremacy Clause, it is up to the courts to figure out whether or not state and federal rules are in conflict.", then expounded your hopes based upon opinion and inferred meaning of articles written in 1787-88.

if that is not subterfuge then please do tell what is... we encourage all folks ot never take ehat they read as gospel and always do their own research... not just trust cut and pasted emails from your crazy uncles and aunts...

basing our future off the past is fine as long as time does not pass... sadly it does.

Posted: Thursday, February 7, 2013
Article comment by: Mary Heartman

@David Gordon & Nutso Fasst
Personally, I don't trust anything I find on the Internet unless I can find at least two corroborating primary sources, preferably in print. Including this forum. That IED seems more of a hoax or a joke. Are you sure it wasn't dreamed up by Mad Magazine or something such just to twit ultra-conservatives?

Posted: Thursday, February 7, 2013
Article comment by: David Gordon

A simple White-pages search returns multiple David Gordon’s here in the Valley, not sure how my sharing the name of a lawyer qualifies as a ‘coincidence’? Our middle names are different in any case.

And why would I need to be a psychic to possess knowledge of our founder’s intent? It must have escaped that commenter’s attention that my source materials for the facts I present are the founder’s own written words. No need for mediums here, the recorded information exists for anyone to research. Don’t believe me? Look it up yourself, there are several online resources for everything from Blackstone’s Commentaries to the Federalist Papers.

That anyone would use subterfuge and misleading statements to belittle another’s research, or to discourage others from researching these issues for themselves, should inform the rest of us that the true nature of their political philosophy is not likely freedom.

Posted: Wednesday, February 6, 2013
Article comment by: if not a lawyer then a psychic medium? .

seeing as there is a David Gordon in the area that is a lawyer... i guess it was coincidence.

as far as interpreting, proving or channeling the deepest inner thoughts and wishes of our forefathers... do you have a TV show on TLC yet?

for anyone to claim intimate knowledge of such things should inform the rest of us on the validity of the ideas.

let the wild rumpus continue...

Posted: Wednesday, February 6, 2013
Article comment by: nutso fasst

@ Wikipedia...better...

Anyone can contribute to Wikipedia articles, and anyone can delete contributions. Consequently, the believability of Wikipedia articles is often inversely proportional to how controversial the subject matter is. For an example, see the Wikipedia page titled "Scientific opinion on climate change," an article that begins with unsubstantiated claims. At the top you'll see an option to "View history." In that history you'll see there are 'gatekeepers' to this page who diligently delete additions that don't agree with their opinion on the subject.

Wikipedia can be a good start for researching a topic, but it's always a good idea to check other references to determine how controversial the 'facts' in an article are.

@ David Gordon re "those who would take [our freedoms]…"

Were they ever so obviously disingenuous? Did they ever have so many unwitting allies? Maybe I just wasn't paying attention.

Posted: Tuesday, February 5, 2013
Article comment by: David Gordon

@ nutso fasst, the battle to protect our freedoms can never cease, because those who would take them will always be with us.

@ Peter, I can, and have, proven exactly what the Founders intended with the 2nd Amendment, multiple times, using their own words. I have yet to see you, or anyone else who would like to make this a race issue, do the same. Lot's of statements and accusations from you all, and absolutely no substance to back any of it up.

@Mary, you're welcome. :)

@ the 'anony-mouse' folks, I'm not a lawyer, just someone willing to do research and keep an open mind. :)

Posted: Tuesday, February 5, 2013
Article comment by: wikipedia has to be better... .

than all these tirades of mis-information from peoples crazy aunts and uncles email forwards...

so i think wikipedia rates a notch above the comments section of the local paper given that dynamic...

Posted: Monday, February 4, 2013
Article comment by: nutso fasst

@ David Gordon:

I was wondering where the anti-U.S. propaganda parroted by a number of commenters here was coming from. Then I happened on this:
Here you will learn through selective quoting that the founders were wealthy, self-serving (gasp!) white male landowners and thus not qualified to create the utopia that would have occurred if 'common' folk had been 'allowed' to vie for power in a 'real' democracy (never mind that Ben Franklin, Richard Bassett, Luther Martin, and most other delegates weren't wealthy). No, if this nation is ever to put its citizens on a 'level playing field' we need the help of the International Endowment for Democracy (IED), a cabal of Marxists that includes such illustrious progressives as Mumia Abu-Jamal, Annette Rubinstein, Howard Zinn, and Bertel Ollman. ( http://www.iefd.org/about/index.php ).

The IED defines itself as "a new foundation of progressive American scholars, lawyers and activists dedicated to promoting real democracy in the country that needs it most, the U.S.A." They apparently believe they'll accomplish this lofty goal by re-writing history and spreading the fear that we're on the edge of a climate catastrophe caused by wealthy, self-serving white male landowners like Al Gore. They're clearly having some success, but not everyone believes in their definition of progress ( http://www.discoverthenetworks.org/printgroupProfile.asp?grpid=7274 ).

Posted: Monday, February 4, 2013
Article comment by: in summary... .

blah blah... the commenter and wikipedia are actually correct... blah blah... applaud a man of the law who decides not to enforce law here and there, blah blah... ?

the fact is that folks are taking this opportunity to grandstand and try to gin up votes and play political games... all the drama is just a way to capitalize on the fear of a shrinking segment of the population known as the GOP.

the last thing we need is more lawsuits that only line the pockets of more lawyers with obvious agendas.

Posted: Monday, February 4, 2013
Article comment by: interesting... a lawyer descends from on high... .

to inform on constitutional law... and defend a local sherrif's choice to selectively enforce laws.

you can toss out case law all you like... in the end its up to the courts... and not those of public opinion.

while our state is tossing various cases at the wall of juris prudence just to see which ones will stick long enough to be tried...at great taxpayer expense... other states are getting stuff done and moving ahead rather than wishing for the days of the old west.

incidentally how many folks remember that the famous shootout in tombstone was centered around gun control? in fact many towns in the wild west had stricter gun control that we do today...

Ordinance No. 9

“To Provide against Carrying of Deadly Weapons” (effective April 19, 1881).

Section 1: “It is hereby declared to be unlawful for any person to carry deadly weapons, concealed or otherwise [except the same be carried openly in sight, and in the hand] within the limits of the City of Tombstone.

Section 2: This prohibition does not extend to persons immediately leaving or entering the city, who, with good faith, and within reasonable time are proceeding to deposit, or take from the place of deposit such deadly weapon.

Section 3: All fire-arms of every description, and bowie knives and dirks, are included within the prohibition of this ordinance.”

there is legalese and there is reality... which do most folks prefer really?

Posted: Sunday, February 3, 2013
Article comment by: Mary Heartman

@ David Gordon
Thank you for taking the time to clarify this point. It's obviously central to many of the problems facing residents of the several states today.

Posted: Sunday, February 3, 2013
Article comment by: Perry Conrad

Thank you David.
I wonder if these quotes ring a brell to some folks?
From the constitution,
"All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."

"To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

And from the bill of rights,
"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."

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