Save Our Sheriff

SOS Admin wrote on 1279415171|%e %b, %H:%M (%O ago)
Tags: arizona az-pima az-pinal sos

Arizona's modest enforcement measures are under attack by the very federal government whose failure to secure the border precipitated their adoption. Is Arizona at the mercy of the Obama administration, or does it have some options here?

Many people are asking, "What can Arizona do?" Ray Hartwell gives one possible answer in his recent commentary Obama lawsuit invites fortified state militia (published by the Washington Times).

Hartwell writes, "Arizona and her sister states in the Southwest could take dramatically stronger actions to bring order to the border. And they would have both history and the Constitution on their side." Then Hartwell goes on to give the history of the Pancho Villa, and points out that Arizona can form and expand its own state militia. Such forces were common when our nation was founded, and the Second Amendment recognizes that a "well-regulated Militia" is "necessary to the security of a free State." In short, Arizona and other states can raise and arm their own military forces.

The Constitution is informative here. In Article IV, Section 4, the federal government is required to "protect each [state] against Invasion; and [on request of the state government] against domestic Violence." As St. George Tucker noted, this provision guards against "the possibility of an undue partiality in the federal government," for example a "sectional" president who might, for political reasons, decline to protect states in a certain region. Today the federal government, at the direction of the president, has declined to carry out its duty under Article IV. Leaving aside its other possible consequences, this intentional failure to protect Arizona raises the question of what action the state is now entitled to take under the Constitution.

This brings us to Article I, Section 10, Clause 3, which provides that "No State shall, without the Consent of Congress … engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay."

So, the militias organized and armed by a state may go to war when the state has been invaded or is in imminent danger. This is clear under Article I, and plainly justified when the federal government has deliberately failed to protect against invasion as required by Article IV. As Joseph Story explains in his treatise on the Constitution, the prohibition against states engaging in war is "wisely" limited by "exceptions sufficient for the safety of the states, and not justly open to the objection of being dangerous to the Union."

At the time of our nation's founding, the states surrendered certain limited powers to the federal government. Logically, foremost among the enumerated powers delegated to the new central authority were those relating to foreign affairs, including the war powers. But the states were prudent; they had a logical concern that if the federal government should fail in its duty to protect them from "invasion" or "imminent danger," perhaps for reasons of political "partiality," then the states should have a robust right to defend themselves, including by armed force. And so they do.

Ray Hartwell is a Navy veteran and a Washington lawyer.

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Photo: John W. "Jack" Swilling (April 1, 1830 – August 12, 1878) founded the city of Phoenix, Arizona, in 1867
http://en.wikipedia.org/wiki/Jack_Swilling