The Handy Law Answer Book. David L Hudson

and supersede all state powers. In other words, the Tenth Amendment seeks to “reserve” some powers for the states and reaffirms the basic notion that the federal government is a government of enumerated (listed) powers, not unlimited powers.

      Courts often refer to the concept of “dual sovereignty” when mentioning the Tenth Amendment, because it is a key provision in creating a federal system of government in which power is often shared between the federal and state governments.

      Periodically, the news media, political pundits, and others refer to “states’ rights” usually as a claim that the federal government is encroaching upon the states’ domain. The constitutional hammer for those who advocate for states’ rights is the Tenth Amendment.

      What type of law creates a Tenth Amendment issue?

      Any time that the federal government passes a law or regulation that requires state or local government officials to administer a federal program, there is an argument that the Tenth Amendment comes into play. The U.S. Supreme Court explained the principle quite bluntly in New York v. United States (1992) that dealt with a federal law imposing requirements on states with respect to the disposal and cost for disposing of radioactive waste: “The Federal Government may not compel the States to enact or administer a federal regulatory program.”

      What is an example of power that should be “reserved” to the states under the Tenth Amendment?

      The U.S. Supreme Court has ruled that much legislation dealing with the regulation of guns is a power properly reserved to the states. In Printz v. United States (1997), the Court struck down parts of a federal law that required local officials to conduct background checks on individuals purchasing handguns. The Court ruled that, under the Tenth Amendment, the federal government could not force the states to administer this federal program because it infringed on an area “reserved” for the states under the Tenth Amendment.

      The U.S. Supreme Court has determined that gun laws for citizens should be mostly regulated at the state level (iStock).

      What does the Tenth Amendment have to do with the concept of federalism?

      Federalism refers to the division of power between the federal and state governments. Members of the United States Supreme Court vehemently disagree over the proper conception of federalism. The Tenth Amendment plays a large role in federalism by specifically referring to the principle that certain powers not given to the national, federal government are “reserved” to the states.

FOURTEENTH AMENDMENT

      Why is the Fourteenth Amendment sometimes called a Second Bill of Rights?

      The Bill of Rights—the first ten amendments of the Constitution—only protects individuals from the federal government. The beginning of the Bill of Rights refers only to “Congress shall make no law.” This refers to the U.S. Congress, which was quickly interpreted by the U.S. Court to mean all three branches of the federal government—not just Congress.

      However, in the 1833 decision on Barron v. Baltimore, Chief Justice John Marshall for a unanimous Court wrote that the Bill of Rights only limited the federal government, not the state governments. This meant that individuals harmed by their state or local governments could not state a claim under the U.S. Constitution’s Bill of Rights. Rather they had to assert a claim under their own state constitution.