June 15, 2009

The "Big Try" Country

Hatched by Dafydd

The state of Montana is trying something very interesting. It will fail... but by igniting the debate, it may ultimately lay the groundwork for a successful pruneback -- one can hope for a chainsaw slashback -- of federal intrusion into state affairs. From the Washington Times:

In May, Montana became the first state to approve the Firearms Freedom Act, which declares that guns manufactured and sold in the Big Sky State to buyers who plan to keep the weapons within the state are exempt from federal gun regulations.

According to the act's supporters, if guns bearing a "Made in Montana" stamp remain in Montana, then federal rules such as background checks, registration and dealer licensing no longer apply. But court cases have interpreted the U.S. Constitution's Interstate Commerce Clause as covering anything that might affect interstate commerce -- which in practice means just about anything.

So if this law sounds ripe for a court challenge, well, that's the idea, said Gary Marbut, president of the Montana Sports Shooting Association, the state's largest pro-gun group.

Well I'm glad that somebody at least is trying to correct the Great Misinterpretation of the New Deal era, where anything and everything was declared to impact interstate commerce (including growing your own vegetables in your own garden) -- and therefore could be regulated by Congress under the enumerated power called the "Commerce clause." That misinterpretation gives the federal government virtually limitless power to trample state authority underfoot.

The Big Sky Country state is not alone; it's joined by the Lone Star state and the Seward's Folly state:

Two other states -- Alaska and Texas -- have had favorable votes on laws similar to Montana's, declaring that guns that stay within the state are none of the feds' business. More than a dozen others are considering such laws, and more-general declarations of state sovereignty have been introduced this year in more than 30 legislatures.

The federal courts may not respond well to these laws in the short term, but backers who acknowledge this say that regardless, they intend for the laws to change the political landscape in the long term. They hope these state laws will undercut the legitimacy of contrary federal law -- as has happened with medicinal marijuana -- and even push federal courts to bend with the popular wind.

As with every politically controversial issue that splits along partisan lines, if the Supreme Court eventually accepts cert from an expected Ninth Circus affirmation of the probable decision by the United States District Court for the District of Montana to strike down the Firearms Freedom Act sometime in the future, the SCOTUS decision will be easily predictable for eight of the justices: Justices Stephens, Breyer, Sotomayor, and Clinton will vote to strike down the FFA as infringing on federal authority; Justices Scalia, Thomas, Alito, and Chief Justice Roberts will (I hope!) vote to uphold it, trimming back the insane expansion of the authority of the federales to the point that they can enact anything, anywhere, any time they want, without regard to the "limitations" of their enumerated powers.

And as usual, it will all come down to Justice Anthony Kennedy, the Court swinger. I remain skeptical that Kennedy will buy into the cockamamie argument that "interstate commerce" means commerce that is inter-state; but I hope he will at least try one of his "split the baby" balancing acts... and we may get a partial movement in the right direction.

Then with some more laws, more cases, and more judgments -- and perhaps in 2014, when Kennedy retires and is replaced by a judicial conservative -- we can actually make the point that activities entirely within a state should be entirely the business of that state, unless they conflict with the fundamental rights self-evidently immanent among all lawful American residents.


Hatched by Dafydd on this day, June 15, 2009, at the time of 6:22 PM

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The following hissed in response by: GW

Great post. My concern is that Scalia and Thomas are not going to last that long. Both are getting long in the tooth. And finding an originalist of Scalia's tremendous powers of reasoning will be difficult - not that Thomas is of lesser intelligence, as he is painted by the left, but Scalia is the smartest man the SCT has seen since Learned Hand by my estimation. God help us if either drop between now and 2012. I have few doubts that when Obama, the Constitutional scholar, is done checking the various victim class blocks, he will start looking for someone who is a liberal internationalist - in which case, federalism will become a small problem when compared to a SCT using the law of Trinadad and Tobago to interpret the penumbra of new rights that our enemies are entitled to claim.

The above hissed in response by: GW [TypeKey Profile Page] at June 15, 2009 7:47 PM

The following hissed in response by: MarkJM

Justice Clinton? Please don't. Just don't!

The above hissed in response by: MarkJM [TypeKey Profile Page] at June 16, 2009 5:13 AM

The following hissed in response by: nk

There has already been a gun/interstate commerce case, U.S. v. Lopez. Kennedy voted with the good guys. The lineup at the link is kind of interesting, though, in other respects.

The above hissed in response by: nk [TypeKey Profile Page] at June 16, 2009 6:02 AM

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