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Guns and the Commerce Clause: On the Way to the Supreme Court?
Cato ^ | 3/18/13 | Ilya Shapiro

Posted on 03/18/2013 11:06:00 AM PDT by Nachum

Nearly two years ago, I wrote about an intriguing Commerce Clause case involving the Montana Firearms Freedom Act. To wit, Montana enacted a regulatory regime to cover guns manufactured and kept wholly within state lines that was less restrictive than federal law. The Montana Shooting Sports Association filed a claim for declaratory judgment to ensure that Montanans could enjoy the benefits of this state legislation without threat of federal prosecution. The federal district court ruled against the MSSA.

On appeal to the Ninth Circuit, Cato joined the Goldwater Institute on an amicus brief, arguing that federal law doesn’t preempt Montana’s ability to exercise its sovereign police powers to facilitate the exercise of individual rights protected by the Second and Ninth Amendments. More specifically, for federal law to trump the MFFA, the government must claim that the Commerce and Necessary and Proper Clauses give it the power to regulate wholly intrastate manufacture, sale, and possession of guns, which is a state-specific market distinct from any related national one.

The lawsuit’s importance is not limited to Montana; a majority of states have either passed or introduced such legislation. The goal here is to reinforce state regulatory authority over commerce that is by definition intrastate, to take back some of the ground occupied by modern Commerce Clause jurisprudence.

(Excerpt) Read more at cato.org ...


TOPICS:
KEYWORDS: banglist; clause; commerce; guncontrol; guns; scotus; secondamendment; shallnotbeinfringed; supreme; youwillnotdisarmus
Comin' fer yer guns
1 posted on 03/18/2013 11:06:00 AM PDT by Nachum
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To: Nachum

If we’re going by the Constitution, then Montana’s laws are not necessary because the federal laws they are working around are inherently unconstitutional. If we’re not following the Constitution, then this is no doubt covered by the power to tax, and Justice Roberts will side with the far left extremists.


2 posted on 03/18/2013 11:16:33 AM PDT by Pollster1
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To: Pollster1

If the government is not operating under what gives it any authority at all, the Constitution,

then it is operating out of sheer thuggery,
and it has no legitimate authority other than its ability to use force to make us comply.

They no longer operate under the prime foundation of Western government - the consent of the governed.


3 posted on 03/18/2013 11:24:49 AM PDT by MrB (The difference between a Humanist and a Satanist - the latter admits whom he's working for)
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To: Pollster1

Roberts might not have a say if the 9th Circuit ruling isn’t appealed or the SC refuses to hear the case on appeal.


4 posted on 03/18/2013 11:33:05 AM PDT by saganite (What happens to taglines? Is there a termination date?)
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To: saganite

CAn’t a Justice bring a case before them all?
I thought i read that before the SC decided to hear the obamacare constitutionality


5 posted on 03/18/2013 11:36:30 AM PDT by RWGinger
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To: Nachum

Because Title 28 contains statutes which govern all federal courts,
the consistent use of “United States” to refer to the federal
government carries enormous weight. Title 28 is the latest word
on this subject, as revised, codified and enacted into positive law
on June 25, 1948. Moreover, the Supremacy Clause elevates
Title 28 to the status of supreme Law of the Land.

To make matters worse and to propagate more confusion,
the entity “UNITED STATES OF AMERICA”
incorporated twice in the State of Delaware:

The main problem that arises from these questions is that
United States Attorneys are now filing lawsuits and
prosecuting criminal INDICTMENTS in the name of the
“UNITED STATES OF AMERICA” [sic]
but without any powers of attorney to do so. Compare
28 U.S.C. 547 (which confers powers of attorney to represent
the “United States” and its agencies in federal courts):

http://www4.law.cornell.edu/uscode/28/547.html

They are NOT “United States of America Attorneys”, OK?

First of all, they do NOT have any powers of attorney
to represent Delaware corporations in federal courts;
Congress never appropriated funds for them to do so
and Congress never conferred any powers of attorney
on them to do so either.

Secondly, the 50 States are already adequately represented
by their respective State Attorneys General; therefore,
U.S. Attorneys have no powers of attorney to represent
any of the 50 States of the Union, or any of their agencies,
either.

They are “U.S. Attorneys” NOT “U.S.A. Attorneys”, OK?

Accordingly, it is willful misrepresentation for any U.S. Attorney
to attempt to appear in any State or federal court on behalf
of the “UNITED STATES OF AMERICA” [sic]. And,
such misrepresentation is actionable under the McDade Act
at 28 U.S.C. 530B:

http://www4.law.cornell.edu/uscode/28/530B.html

http://www.supremelaw.org/letters/us-v-usa.htm


6 posted on 03/18/2013 11:37:53 AM PDT by phockthis (http://www.supremelaw.org/fedzone11/index.htm ...)
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To: Nachum

Guns manufactured, sold, and used in Montana impact interstate commerce, by reducing demand and transport of guns manufactured outside of Montana.

Guns manufactured, sold and used in Montana affect interstate commerce, because the raw materials and goods (machinery, etc) used in the manufacturing process are, to some measurable degree, mined, milled, manufactured, or otherwise produced outside of Montana; and are delivered to Montana via interstate commerce.

Guns manufactured, sold and used in Montana affect interstate commerce, by using ammunition that may have entered into interstate commerce either directly, or by way of materials used to manufacture it.

Guns manufactured, sold and used in Montana may directly affect or enter into interstate commerce because they may be purchased by people, who outside the state’s after-sale view, may remove them from the state, and even sell them outside the state, if they move out of Montana; take them on an out of state hunting trip; or by other means. Especially true if they use an interstate common carrier; and perhaps in the case of interstate common carrier, even if they only travel within the state.

Remember, it’s a point of law: one may not grow their own chicken feed, if they are a grain farmer, and the ‘own use’ portion of the crop would violate government approved production quotas of the grain, because even though it never leaves the farm, it affects interstate commerce by reducing demand for grain grown off the farm.

As horribly wrong and misconstrued as it is, it is what the Supremes declared the law & Constitution to mean. By precedent, the state would become the grain farmer, and the federal bans would become the approved individual grain quotas, and the defendants become screwed.


7 posted on 03/18/2013 11:39:59 AM PDT by ApplegateRanch (Love me, love my guns!©)
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To: ApplegateRanch

The interpretation of Wickard and later, Raich, has left all bounds of reason.

Except for a glimmer of sense in Lopez, the current rulings amount to saying that *everything* affects interstate commerce. Therefore the commerce clause is null and void, because if *everything* is included in the the clause, then there was no reason for the clause at all.

It would have been much simpler to say: The Federal Government has the power to regulate everything.

The current ruling is simply false, a gross oversteping of federal power, and long overdue for pruning.


8 posted on 03/18/2013 12:00:43 PM PDT by marktwain (The MSM must die for the Republic to live. Long live the new media!)
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To: marktwain; ApplegateRanch
Except for a glimmer of sense in Lopez, the current rulings amount to saying that *everything* affects interstate commerce. Therefore the commerce clause is null and void, because if *everything* is included in the the clause, then there was no reason for the clause at all.

Current commerce clause rulings essentially say "ignore all other sections of this document" it seems to me.

9 posted on 03/18/2013 12:10:19 PM PDT by MileHi ( "It's coming down to patriots vs the politicians." - ovrtaxt)
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To: ApplegateRanch; MileHi; marktwain

I am of the opinion that Rule .308 trumps the Commerce Clause. Rule .308 is a direct legal descendant of that ancient legal principle of “phook uuz gies,” and last put into operation in this country by George Washington and a bunch of like-minded fellows.


10 posted on 03/18/2013 1:18:01 PM PDT by Ancesthntr (Banning guns to prevent crime is like banning cars to prevent drunk driving.)
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To: Nachum

Commerce Clause?

Bring it fags.

Way to easy to defeat for intent, error of the bill of rights, etc....


11 posted on 03/18/2013 1:23:20 PM PDT by Vendome (Don't take life so seriously, you won't live through it anyway)
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To: Ancesthntr

My brand new Magpul mags and I agree


12 posted on 03/18/2013 1:28:08 PM PDT by MileHi ( "It's coming down to patriots vs the politicians." - ovrtaxt)
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To: Pollster1

But if the insurgent gov’t is not adhering to the Constitution, don’t the States have the right to merely adhere to the Constitution?


13 posted on 03/19/2013 1:36:47 PM PDT by Obama_Is_Sabotaging_America (PRISON AT BENGHAZI?????)
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To: Nachum; Lurking Libertarian; JDW11235; Clairity; TheOldLady; Spacetrucker; Art in Idaho; GregNH; ...

14 posted on 03/19/2013 1:54:07 PM PDT by BuckeyeTexan (There are those that break and bend. I'm the other kind. ~Steve Earle)
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To: Nachum
How is this different from US v. Stewart?

Not long after the decision in Raich, the Court vacated a lower court decision in United States v. Stewart and remanded it to the court of appeals for reconsideration in light of Raich. In Stewart, the Ninth Circuit had held that Congress lacked the Commerce Clause power to criminalize the possession of homemade machine guns.

http://en.wikipedia.org/wiki/Gonzales_v._Raich

15 posted on 03/19/2013 3:18:42 PM PDT by Ken H
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To: Nachum

I have no respect for court rulings anymore. They are just stuffed with political operatives who twist the law to get the results that they want. If decisions were based on the law then we would not have multiple courts with totally different decisions. Take this to a different district court or a different circuit court and you might get an entirely different decision.

Then to have one court(USSC) decide it all is just nonsense. As we have seen again and again. They are now the least law abiding group of Kangaroo’s that ever existed in a courtroom.


16 posted on 03/19/2013 3:25:22 PM PDT by Revel
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To: ApplegateRanch; MileHi; marktwain; Jacquerie

I think this is an opportunity to revisit Wickard and the absurdity born of it. Why have a CC if the federal (remember we don’t have a national government) government has unlimited powers to regulate every aspect of human life?

The important wedge here is that a sovereign state is acting and not just some lowly human. This will be a very important ruling.


17 posted on 03/19/2013 5:08:09 PM PDT by 1010RD (First, Do No Harm)
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To: Ken H

This is a sovereign state acting v. “Robert W. Stewart, Jr., a convicted felon”


18 posted on 03/19/2013 5:11:13 PM PDT by 1010RD (First, Do No Harm)
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To: Pollster1
Cato's line of reasoning is brilliant:

the Constitution limits claims of implied power under the Commerce Clause, as confirmed by the Necessary and Proper Clause. Based on Federalist Nos. 28, 31, 33 and 51, we contended that the Ninth and Tenth Amendments were meant to work in tandem to confirm that the states may exercise their reserved powers to secure constitutional liberty against federal overreach. In other words, the Founders fully intended for the people to resist federal usurpation through their state representatives passing laws such as the Montana Firearms Freedom Act to protect freedoms guaranteed by the Second and Ninth Amendments.

Between them and the apellants' argument SCOTUS is in a tight spot. Which do you deny - bad precendent or Constitutional limitations?

It's messy for the statists and there's a strong bias toward federalism on the current court.

19 posted on 03/19/2013 5:25:29 PM PDT by 1010RD (First, Do No Harm)
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To: 1010RD
Well, I suppose it would be a good thing to revisit Wickard, if for nothing else than to either witness the renewal of a clause of Constitutionalism (most doubtful) or the reaffirmation of Statism (most likely).

IIRC, eight of the nine Wickard justices were New Dealers. They boldfaced stole a power reserved to the States at the Constitutional Convention, control of commerce strictly within their borders.

I've come to think that most of our present problems derive from the 17th Amendment. Would the Wickard justices have done this if they could expect retribution from State appointed Senators? What about the lower courts? Would Leftist judges hostile to the 9th and 10th have had any chance of appointment in the first place? Would FDR have bothered to nominate such judges?

I'll be making several posts on the 100th anniversary of the 17th next month. IMO, when we ceased to be a federal republic, our fate, meaning increasing civil disorder and eventual dissolution was sealed.

I agree it will be an important case, but since the States have lacked any agency in the republic for 100 years, I expect the Ruling Class to circle the wagons and defend themselves. They recognize no sovereignty in the States or the people.

20 posted on 03/19/2013 5:46:08 PM PDT by Jacquerie ("How few were left who had seen the republic!" - Tacitus, The Annals)
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To: 1010RD
How is this different from US v. Stewart?

This is a sovereign state acting v. “Robert W. Stewart, Jr., a convicted felon”

That shouldn't matter. If Congress's power under the Commerce Clause extends to outlawing homemade machine guns for individuals, it also extends to state laws governing such matters because of the Supremacy Clause.

21 posted on 03/19/2013 5:56:31 PM PDT by Ken H
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To: Ken H
That shouldn't matter.

Just doesn't bridge the gap between theory and practice, does it?

22 posted on 03/19/2013 6:05:17 PM PDT by 1010RD (First, Do No Harm)
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To: 1010RD
Not sure I get your point. If Commerce Clause power allows Congress to shut down intrastate medical marijuana programs, how could it not apply to intrastate gun manufacture as well?
23 posted on 03/19/2013 6:31:17 PM PDT by Ken H
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To: 1010RD
I think this is an opportunity to revisit Wickard...

Maybe. They had a chance with the Raich (sp?) case and passed.

24 posted on 03/19/2013 8:20:15 PM PDT by MileHi ( "It's coming down to patriots vs the politicians." - ovrtaxt)
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