Montana’s States’ Rights Showdown

State lawmakers have done a lot since President Obama's election to shake off Uncle Sam, passing "sovereignty" resolutions and a record number of laws that specifically defy Congress on issues such as legalized marijuana and health-care reform. Most make the same claim: that the U.S. Constitution gives the federal government power to regulate commerce between states but doesn't permit interference in purely local affairs. Later this year, the Montana Firearms Freedom Act, which proclaims that guns manufactured in Montana and sold in state are not subject to federal rules such as background checks, is slated to become the first of these Obama-era commerce challenges tested in court. But the case, which originated when a gun-rights group sued the Justice Department for threatening a crackdown, shouldn't give separatists hope: it's doomed to fail, as will similar rebukes.

That's because no state is an island (Hawaii included), and Congress can regulate anything that could jump state lines. It's a category, says George Mason University professor Nelson Lund, a Second Amendment scholar, that excludes almost nothing—certainly not pot and guns.

"That's because no state is an island (Hawaii included), and Congress can regulate anything that could jump state lines. It's a category, says George Mason University professor Nelson Lund, a Second Amendment scholar, that excludes almost nothing—certainly not pot and guns."

Oh, ok professor Lund. So now we need statist scholars to explain to us confused simple-minded-serfs what is sooo complicated and out of our mental comprehension capabilities. Our constitution wasn't written in confusing vague half sentences. It was written with obvious meaning and intent.

Liberal US Constitution scholars (idiots, liars and experts in playing semantics) are only needed by progressives to obfuscate the true intent and meaning of the law within the constitution.

It doesn’t take rocket science to refute clowns like Nelson Lund.

In his 1913 book, The Framing of the Constitution, Max Farrand explained, in part, why this provision was incorporated into the Constitution:

“Pending a grant of power to congress over matters of commerce, the states acted individually. A uniform policy was necessary, and while a pretense was made of acting in unison to achieve a much desired end, it is evident that selfish motives frequently dictated what was done. Any state which enjoyed superior conditions to a neighboring state was only too apt to take advantage of that fact. Some of the states, as James Madison described it, ‘having no convenient ports for foreign commerce, were subject to be taxed by their neighbors, through whose ports their commerce was carried on.’… The Americans were an agricultural and trading people. Interference with the arteries of commerce was cutting off the very life-blood of the nation and something had to be done.”

I totally agree that the purpose of the words “regulate commerce… among the several States” was to insure the free passage of goods between the individual States. During the debates in the Federal [Constitutional] Convention of 1787 on this provision, Oliver Ellsworth stated:

“The power of regulating trade between the States will protect them against each other.”

James Madison reiterated this point in the Convention: “[P]erhaps the best guard against an abuse of the power of the States on this subject was the right in the General Government to regulate trade between State and State.

In The Federalist, essay No. 45, Madison asserted that the Commerce Clause was a harmless power that no one really opposed:

“If the new Constitution be examined with accuracy and candor, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL powers. The regulations of commerce, it is true, is a new power; but that seems to be an addition which few oppose, and from which no apprehensions are entertained.”

In light of the heated debates that raged following the close of the Federal Convention concerning the extent of the powers delegated to the federal government, it is inconceivable that there were no apprehensions or serious opposition to a clause that allegedly granted the federal government unlimited regulatory power.

Thomas Jefferson, in 1791, stated that Congress was not granted the power to regulate commerce within the several States:

“[T]he power given to Congress by the Constitution does not extend to the internal regulation of the commerce of a state, [that is to say, of the commerce between citizen and citizen,] which remains exclusively with its own legislature; but to its external commerce only, that is to say, its commerce with another state, or with foreign nations, or with Indian tribes.”

The Commerce Clause granted Congress the power to make regular or normalize commerce between individual State and individual State. It did not grant Congress the general power to control individuals or private business engaged in commerce. This fact is substantiated by the 13th Amendment passed in 1865 (banning slavery), the 18th Amendment passed in 1919 (banning intoxicating liquors), and the 21st Amendment passed in 1933 (repealing the ban on intoxicating liquors). All of these amendments involved commerce, yet Congress realized that it took a constitutional amendment before it had the power to legislate in these areas.

This argument, that the interstate commerce clause gives the federal government the power to regulate everything, renders the interstate commerce clause meaningless. If interstate commerce means all commerce, then the writers of the Constitution would have said "commerce", not "interstate commerce".

As Mr. Justice Clarence Thomas noted in his irrefutable dissent in GONZALES V. RAICH:

"Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. 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."

The greatest failure of the last Bush administration was the President's failure to nominate Mr. Justice Thomas to be Chief Justice...

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