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Posted on 06/17/2009 5:30:24 AM PDT by marktwain
Gary Marbut isn't aiming to eliminate federal gun laws. He just wants to make them much less relevant.
Marbut, president of the Montana Shooting Sports Association, is one of the leaders of a new grassroots movement that's seeking to invoke the principle of states' rights -- including states' own authority to regulate firearms -- to thwart what he and his allies view as an increasingly overreaching federal government.
Politicians in Washington have "assumed power that many of us believe was not authorized under the limits of the Constitution," Marbut said in an interview with CBSNews.com last week.
This modern-day federalist revolt began with a Montana state law recently signed by Democratic Gov. Brian Schweitzer. It says that firearms, ammunition, and accessories manufactured entirely inside Montana are not subject to federal regulation, including background checks for buyers and record-keeping requirements for sellers. They would remain subject to state regulation.
The law, which does not permit the manufacture of certain large-caliber weapons or machine guns, takes effect on October 1, 2009.
Montana is hardly alone: the Tennessee legislature has approved a nearly-identical bill, and others are pending in Texas, Alaska, Minnesota, and South Carolina. About 10 other states, including Florida and Arizona, are reportedly considering similar measures, and a Colorado state legislator has publicly pledged to follow suit.
Tennessee Gov. Phil Bredesen, a Democrat, said on Friday that he would let the bill become law without his signature. (Bredesen vetoed one gun rights bill last month; the veto was overriden.)
While this federalism-inspired revolt has coalesced around gun rights, the broader goal is to dust off a section of the Bill of Rights that most Americans probably have paid scant attention to: the Tenth Amendment. It says that "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."
Read literally, the Tenth Amendment seems to suggest that the federal government's powers are limited only to what it has been "delegated," and the U.S. Supreme Court in 1918 confirmed that the amendment "carefully reserved" some authority "to the states." That view is echoed by statements made at the time the Constitution was adopted; New Hampshire explicitly said that states kept "all powers not expressly and particularly delegated" to the federal government.
But a series of subsequent court cases have, in the eyes of the federal judiciary, narrowed the Tenth Amendment so it now has little legal force.
The states "never gave the federal judiciary permission to erase the Tenth Amendment from the Constitution," Marbut said. "We need to reacquaint them with the Tenth Amendment."
That will be no trivial task. In a letter last week to the Tennessee House of Representatives, Gov. Bredesen said the state's version of the bill had "clear constitutional deficiencies," and even scholars who tend to favor gun rights believe it will meet a frosty reception if it ends up in court. (A spokesman for the Brady Campaign did not respond to an interview request.)
"I think they probably should succeed and I think they probably won't," Nelson Lund, a professor of constitutional law at George Mason University who specializes in the Second Amendment, said in an interview, referring to the backers of the gun rights bills. "The Supreme Court has strong precedents that would render this statute invalid."
Two doyens of gun rights advocacy agree. David Kopel of the free-market Independence Institute in Golden, Colo., says supporters would be "foolish" to expect to win. Randy Barnett, a Georgetown University law professor, believes the federalism laws won't "stand up to scrutiny" and has been suggesting ways Texas and Utah could amend their pending bills to survive judicial review.
Barnett should know: he was a lead attorney in Gonzales v. Raich, in which the U.S. Supreme Court rejected similar claims involving medical marijuana. Angel Raich is a seriously ill patient who wanted to grow her own medical marijuana, which state law permitted her to do. But a federal law that the Justice Department claimed was based on Congress' constitutional authority to "regulate commerce" made it illegal.
In a 6-3 opinion written in 2005, the court said that someone growing marijuana for her own use could have a "substantial effect on interstate commerce" and therefore was able to be regulated by the federal government. (In an impassioned dissent Justice Clarence Thomas said that: "If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything -- and the federal government is no longer one of limited and enumerated powers.")
One possibility is is that the composition of the U.S. Supreme Court has changed enough in the last four years to make a repeat of Gonzales v. Raich unlikely; on the other hand, some justices that might have been sympathetic to a sick mother using medical marijuana may not be as willing to embrace federalism in the form of liberalized gun regulations.
Another possibility is that proponents can argue -- as Marbut plans to do -- that this case is different. In Gonzales v. Raich, the Supreme Court noted "it is not feasible to distinguish" marijuana that's "manufactured and distributed interstate and controlled substances manufactured and distributed intrastate." The Montana law, by contrast, says that all state-made firearms "must have the words 'Made in Montana' clearly stamped on a central metallic part, such as the receiver or frame."
Marbut says he plans a test case in federal court that would use the example of a Montana resident without a federal firearms license seeking to manufacture a made-in-Montana gun. "We can get this clarified," he said. "I do not want any Montana citizen to face federal prison time."
Even though this case is a legal long shot, federalism fans say it's worth pursuing. "It's great PR for us," says Alan Gottlieb, founder of the Bellevue, Wash.-based Second Amendment Foundation. "It's keeping gun owners across the country excited and energized. It's a way of taking the offensive when normally gun owners are on the defensive."
The stakes are higher, of course, than just gun rights. If the judiciary somehow breathes new life into the Tenth Amendment, and curbs federal regulation of commerce taking place entirely within a state, that would let states bypass innumerable federal rules on everything from pharmaceuticals to children's toys.
"It's a response to federal overreaching," Gottlieb says. "A lot of people supporting this cause couldn't care less about firearms. They don't want the Obama administration dictating what states can and can't do. It's a pushback against federal authority in general."
In other words, if the state-by-state efforts to enact laws citing the Tenth Amendment prove to be legally futile, they might still raise the visibility of the topic of state autonomy. And a host of governors signing laws expressing their support for the Tenth Amendment might make the Obama administration view political realities a little differently.
Says Lund, the George Mason professor: "To the extent they're working to get people to think for themselves about the Constitution, that's a good thing and could lead to some good results."
That’s what the switch from natural law to common/case law did.
Instead of “that law is not authorized by the Constitution/Bible”,
it became “in the case of Nose v Ear, the judges ruled X, so that’s the law”.
The entire US Constitution has been supplanted by brain-dead interpretations of the Commerce Clause and the Necessary and Proper Clause. We may as well get rid of the rest.
Patrick Henry (before the dementia kicked in, circa 1797) was proven correct by history - these two minor components of the US Constitution have served to nullify the remainder of the document. Hamilton (and Madison, for the most part) succeeded in birthing the tyrannical government they wished upon America (a nation led by an elected king, without any watery wenches back-story)
Good idea- but unfortunately, like the teaparties, noone in washington is goign to listen- Obama and hte dems are goign to do what they want regardless of what the people want or how it might hurt this coutnry.
There's no other way to read the 10th.
L
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So isn’t that how we switch back? The way they illegally made the switch? The only difference is that our laws will be constitutional.
They’ve been tyrannizing us with their brass-balled moles in our judiciary for decades while we follow the “rules” they hand down. It’s time we grew a pair ourselves and reinstated the Constitution. Does any Conservative believe our Constitution should not be followed? Fight fire with fire.
The stakes are higher, of course, than just gun rights. If the judiciary somehow breathes new life into the Tenth Amendment, and curbs federal regulation of commerce taking place entirely within a state, that would let states bypass innumerable federal rules on everything from pharmaceuticals to children's toys.Exsqeeze my ignorance but I'm 99.995% sure the Rehnquist Court over turned a lot of laws just because of that. In effect they told Congress, "The Commerce Clause doesn't pertain to everything." (iirc that was in regards to Di-Fi's Gun Free School Zone Law they overturned).
And in this article Justice Thomas basically says the same thing: ""If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything."
In its Lopez decision, SCOTUS told Congress how to write a gun-free-school-zones act that would survive SCOTUS scrutiny. Congress followed the advice, and DiFi's Gun Free School Zone Law is currently on the books and enforceable.
SCOTUS is not at all friendly to the RKBA, nor is it at all friendly to diminution of federal power against the states, or against the individual.
Sigh. :(
The manufacture of machine guns and large caliber rifles is the whole gist of it. Going back to the first ones, the Jim Crow Laws were illegal. So were NFA ‘34, GCA ‘68, FOPA ‘86, AWB ‘94, I mean come on.
I would hope that at least Texas will go for the whole shebang.
To clarify the idiocy involved in Raich:
SCOTUS ruled that because Ms. Raich's activity decreased demand in an illegal interstate market, the feds could regulate her activity into oblivion. Got that? Because growing the stuff at home made her LESS likely to engage in ILLEGAL interstate commerce, the feds could stop her.
Be Ever Vigilant!
I saw these folks on Glenn Beck and I don’t think they have a defeatist attitude, they have a plan and I pray it works!
Creative strategy! FYI: There is no NEED for the Supremes to consider 2nd Amendment “Incorporation”! FACT: The 2nd Amendment is SELF-incorporated to all government entities at every level. It is MORE ABSOLUTE than the 1st Amendment, or any of the others, because the wording forbids not only CONGRESS, but ANYONE from infringing on it. The 1st says “Congress shall make no law...”. The 2nd say “shall NOT be infringed!” Period! End of debate!
Anyone Posted THIS?
In Border States, BATFE Asks: “May We See Your Guns?”
Friday, June 19, 2009
NRA-ILA has recently received several calls from NRA members in border states who have been visited or called by agents of the Bureau of Alcohol, Tobacco, Firearms and Explosives. In some cases, agents have asked to enter these people’s homes, and requested serial numbers of all firearms the members possess.
In each case, the agents were making inquiries based on the number of firearms these NRA members had recently bought, and in some cases the agents said they were asking because the members had bought types of guns that are frequently recovered in Mexico.
This kind of questioning may or may not be part of a legitimate criminal investigation. For example, when BATFE traces a gun seized after use in a crime, manufacturers’ and dealers’ records will normally lead to the first retail buyer of that gun, and investigators will have to interview the buyer to find out how the gun ended up in criminal hands. But in other cases, the questioning may simply be based on information in dealers’ records, with agents trying to “profile” potentially suspicious purchases.
On the other hand, some of the agents have used heavy-handed tactics. One reportedly demanded that a gun owner return home early from a business trip, while another threatened to “report” an NRA member as “refusing to cooperate.” That kind of behavior is outrageous and unprofessional.
Whether agents act appropriately or not, concerned gun owners should remember that all constitutional protections apply. Answering questions in this type of investigation is generally an individual choice. Most importantly, there are only a few relatively rare exceptions to the general Fourth Amendment requirement that law enforcement officials need a warrant to enter a home without the residents’ consent. There is nothing wrong with politely, but firmly, asserting your rights.
If BATFE contacts you and you have any question about how to respond, you may want to consult a local attorney. NRA members may also call NRA-ILA’s Office of Legislative Counsel at (703) 267-1161 for further information. Whether contacting a local attorney or NRA, be sure to provide as many details as possible, including the date, time, and location, agent’s name, and specific questions asked.
Yes. I was disgusted with the majority in Raich, and especially disappointed with Scalia. This is one of the reasons I think Thomas is the best justice on the court. He sticks to sound principles of limited government power without regard to whose ox is getting gored on a particular day.
Too bad. Let them go get their eyes checked if needed. Our liberty is not theirs to take.
Correcto!
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