Accusations and Answers
Gary Marbut, president
Montana Shooting Sports Association
(and author of Sheriffs First)
These are some of the accusations made by opponents about Sheriffs First and answers to those accusations.
Accusation: Sheriffs First would be a radical departure from the status quo.
Answer: If federal
officers currently work well with the local sheriff, little would
change. If federal officers do not work with the local sheriff
now, the sheriff would have a tool available to obtain cooperation.
Accusation: Sheriffs cannot be arresting FBI agents. It is just unthinkable.
Answer: We believe that
FBI agents are among the most impeccably law-abiding people in our
society. The personnel of FBI and the U.S. Marshal's Service have
earned the reputation of being the most well-behaved of federal
officers. We believe they would not knowingly violate Sheriffs
First. Violations by federal officers of some other federal
agencies would be more likely than by the FBI. However, there is
a name for people who break the law. They are called
outlaws. Outlaws are subject to arrest, regardless of who their
employer may be. See discussion of qualified immunity below.
Accusation: The federal
government (and its officers) is supreme ("Supremacy Clause") in all it
does so Sheriffs First is unconstitutional.
Answer: The laws passed
by Congress only trump state laws when such federal laws are validly
enacted and exercised within the enumerated powers of Article I,
Section 8 of the U.S. Constitution. The Supremacy Clause only
applies to the enumerated powers. The national government does
not have general police powers, but the states do have general police
Is Sheriffs First "unconstitutional"? That depends on which end
of the constitutional telescope you think should be closest to your
eye. Here is the truth.
If you believe and accept that the Tenth Amendment has been effectively
and properly removed from the Constitution, that the Tenth Amendment is
a "dead letter," and that the Tenth Amendment has effectively ceased to
exist, then you will believe that Sheriffs First has no constitutional
foundation and the federal government is supreme in everything it wants
to do. Under this view, a person might well think Sheriffs First
If you believe that the Tenth Amendment has meaning, that its presence
in the Bill of Rights cannot be simply blinked away, that the Tenth
Amendment must be given an equal seat at the table with the other nine
articles of the Bill of Rights, and that the states should fight for
recognition of the Tenth Amendment, then Sheriffs First is perfectly
within a rational constitutional structure of government and is an
expression of the proper relationship between the states and the
national government created by the states.
So, which end of the telescope do you use to view this important states' rights question?
Accusation: What about "qualified immunity"? Federal officers are immune to state laws, aren't they?
immunity" is basically the Nuremberg defense - it's okay to murder 12
million Jews because I was ordered to do so by my superior
officer. That defense was debunked at the post-WWII Nuremberg
Trials and international law established then to forever disallow that
excuse for crime.
Principles of International Law
Recognized in the Charter of the Nuremberg Tribunal and in the Judgment
of the Tribunal. Adopted by the International Law Commission of the
United Nations, 1950.
The fact that a person acted pursuant to order of his Government
or of a superior does not relieve him from responsibility under
international law, provided a moral choice was in fact possible to him.
Try this thought experiment: A federal agent is driving down the
Interstate highway at 120 MPH when pulled over by a state's Highway
Patrol officer. As the HP officer is writing out the citation,
the federal officer tries to excuse his violation, "I'm a federal
officer, this is during my working hours, I'm going from one urgent
work assignment to another, and therefore I'm immune to your silly
state laws." The HP officer would respond, "Tell that to the
When the federal officer tries that excuse on the judge, the judge
responds, "Mr. Federal Officer, we have a variety of laws in this
state, including laws to prohibit and punish for murder, rape robbery,
and against going over 75 miles per hour on the Interstate
highway. If you violate any of those laws while you are in this
state, you will be held to account, regardless of who your employer may
be. Your choices are to either pay the fine now or be escorted to
jail. It's up to you Mr. Federal Officer."
This hypothetical incident is corroborated by the outcome of Idaho v. Horiuchi,
when Boundary County Idaho prosecuted FBI sniper Lon Horiuchi for
manslaughter for shooting Vicki Weaver in the face through an open
doorway and killing her while she held nothing more dangerous than her
infant child in her arms. Federal attorneys defending Horiuchi
"removed" the case to the federal district court and claimed qualified
immunity for Horiuchi. The federal district court granted a
motion to dismiss based on qualified immunity. Idaho appealed to
the Ninth Circuit. The Ninth circuit reversed the district's
qualified immunity finding and remanded the case back to Idaho courts
for Horiuchi to be prosecuted for manslaughter under Idaho law.
Accusation: The Civil War settled any legal questions about the supremacy clause once and for all.
Short Answer: The Civil
War established no legal precedent whatsoever - none. The Civil
War only reaffirmed the old maxim that the belligerent with the most
guns, the most force and the most competent generals wins. Also
Long answer: Let's talk
about consent of the governed. All sources of authority for
governance can be attributed to one of just three theories: 1)
divine right of kings, 2) ability to compel by force, and 3) consent of
Most readers will quickly agree that the type of governance that
applies in the United States is by consent of the governed. It
was the American Revolution that outright rejected divine right of
kings and rule by force. In addition, the concept of consent of
the governed is included in the Declaration of Independence, is the
very underpinning and basis for the U.S. Constitution, and is also
essentially restated in Article II, Sections 1 and 2 of the Montana
To restate the obvious, our western system of political thought holds
that all political power is vested in individuals, and that government
only has such power as individuals surrender to it - that people
engender and empower government only by surrendering some of their
individual, personal political power to government.
When people engender government, they do so with a charter we call a
constitution. In constitutions, it is typical for people to not
only say what government may do, but to also say what it may not do -
what political powers and prerogatives the people reserve to themselves
from government interference. What government is forbidden to do
by those giving limited political power is contained in the Bill of
Rights (U.S.) and the Declaration of Rights (Montana). Here
government may not tread, say the creators of government.
This is consent of the governed at work. Not only do people
consent to just so much government authority, they also deliberately
and specifically withhold consent for much that government might
I say all of this to underscore how absolutely foundational, bedrock
consent of the governed is to our American political philosophy.
Without constant attention to consent of the governed, our system is
only different by degree from every form of tyranny ever invented,
whereby a select few to own and compel everyone else. Consent of
the governed is the difference between black and white - between
freedom and some form of slavery.
It is not possible to belabor this point. With consent of the
governed is freedom (of some form). Without consent of the
governed is tyranny (of some form).
That gets us to any disagreement about the effect of the Civil War on
supremacy. I don't dispute that the North (federal government)
won that war. However, the result of that victory was an
unarguable display of rule by force, not an exercise in consent of the
governed. I say again, the victory of Fed over others was an
exercise in rule by force, not of rule by consent of the governed.
Let me take a short side trip to explain why I think it is incorrect to
refer to what is known by many as the Civil War (by some as the "War of
Northern Aggression") as a contest between North and South. There
was great resistance to this War in the North. One of the largest
battles of this war was fought on the streets of New York City, a
battle innocuously and misleadingly referred to by many historians as
"draft riots." That understatement obscures the fact that
trainloads of Union regulars were imported to engage this battle
between thousands on each side, and it included all of the ingredients
of warfare such as use of cannon and cavalry by both sides.
People of New York resisted being compelled by federal mandate, just
like the people of the South. The result for them was the same as
the result for the people of the South - federal troops and rule by
So, resistance to federal tyranny happened throughout much of the U.S.
in the 1860s, not just south of the Mason-Dixon line. This was a
direct contest between rule by force and defense of rule by consent of
So, some may argue that one of the important losses in the Civil War
was loss of consent of the governed. I don't disagree with
that. Those who favor consent of the governed DID lose in the
"Civil War." Those who favor rule by force won.
Now, some people might hold that having lost consent of the governed we
should quietly go along with whatever flavor of tyranny has replaced
it. I am not one of those people, and that may be the core of the
disagreement between those for and against Sheriffs First. I
continue to resist tyranny, and to claim consent of the governed for
myself and others. I have not given up on that most essential
principle won by freedom-lovers in the American Revolution, consent of
Others may say that since we lost consent of the governed in the Civil
War and there's no way to get it back. We are now stuck, they may
say, living under the current flavor of tyranny that is alternative to
consent of the governed. Our only option, those may say, is to
submit to whatever our federal masters choose for us (Supremacy Clause).
I disagree emphatically.
President John Kennedy said, "Those who make peaceful revolution impossible make violent revolution inevitable."
Sheriffs First proponents want a peaceful revolution. We want to
reinstitute consent of the governed. Sheriffs First returns some
measure of local consent (or "unconsent") as a way to reclaim power
from a federal government that has become much too powerful.
I hope Sheriffs First opponents have the wisdom to understand this as I
have described it, and the gumption to help us challenge Goliath with
Sheriffs First. I don't claim that there is no danger in doing
this. I do assert that freedom is worth the risk. Any who
want a second opinion about that should consult those who wintered at
It is not specifically for Sheriffs First opponents, but for all who
think freedom is not worth risk, that I here cite Samuel Adams:
"If you love wealth more than liberty, the tranquillity of servitude
better than the animating contest of freedom, go home from us in peace.
We ask not your counsels or arms. Crouch down and lick the hands which
feed you. May your chains be set lightly upon you and may posterity
forget ye were our countrymen."
Accusation: The Fourth
Amendment clearly authorizes federal warrants so anything contrary to a
federal warrant is unconstitutional and illegal.
Answer: The Fourth
Amendment authorizes nothing. All of the Bill of Rights acts as
restriction on the powers of the national government. The Fourth
Amendment restricts federal warrants to those within the constraints of
the Fourth - it does NOT "authorize" them.
While sheriffs operating under Sheriffs First would likely find most
federal warrants sufficient to generate the necessary permission from
the sheriff, not all federal warrants are valid. See Groh v. Ramirez:
Illegal federal warrants such as used in Groh,
the Randy Weaver incident in Idaho and the immolation of the Branch
Davidians at Waco, Texas, should be rejected by the local elected
sheriff. See a letter from the ACLU, NRA, and seven other
national groups objecting to illegal activities by federal police at: