Gun Rights and the 10th Amendment


The Wall Street Journal's Jess Bravin profiles the efforts of Montana activist Gary Marbut, who hopes to use the case for gun rights as a method to roll back federal regulatory power:

For years, Mr. Marbut argued that a wide range of federal laws, not just gun regulations, should be invalid because they were based on an erroneous interpretation of Congress's constitutional power to regulate interstate commerce. In his corner were a handful of conservative lawyers and academics. Now, with the rise of the tea-party movement, the self-employed shooting-range supplier finds himself leading a movement.

Eight states have adopted his Firearms Freedom Act, which Mr. Marbut conceived as a vehicle to undermine federal authority over commerce.

Ten state attorneys general, dozens of elected officials and an array of conservative groups are backing the legal challenge he engineered to get his constitutional theory before the Supreme Court. A federal appeals court in San Francisco is now considering his case.

Read the whole story here.

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  1. Wouldn’t it be simpler to just convoke the States to a Constitutional Convention to amend the Cosntitution? An amendment can be added that redefines the scope and meaning of such “clauses” as the “General Welfare Clause,” the “Interstate Clause” and the “Necessary and Proper” clause, and have all laws created and approved under the older judicial opinions null and void. That would make the Federal Government pretty much irrelevant.

    Ok, maybe the States will not all agree to the wording of such amendment, but just to convoke them would give Congress the heebie jeebies.

    1. Assuming you even could do it, the necessary clauses needed to actually constrain the government so that future bootlickers couldn’t twist those words would be so difficult to craft, the heat death of the universe would be upon us before it could be finished.

      Just look at the genius statists displayed in redefining even simple words like “no” and “law” to mean “Some laws if we really, really want them.”

      1. Hell, just look at obscenity: an entire body of federal law is somehow based on a text that explicitly denies the federal government the power to pass those laws.

        1. And the nightmarish hash they have made of the 4th. Probable cause is a justification for a warrant, not a reason to not need one.

          1. As far as I’m concerned, the United States is a case study in how a minarchist experiment can’t hold, even under ideal conditions.

            1. That is exactly my case for anarchism as opposed to minarchism.

              1. Are you suggesting that anarchy exhibits superior stability?

                1. The Icelandic Commonwealth lasted for over 300 years.

                2. It can; The U.S. government undergoes major rewrites every 80 years or so. Most states are even less stable.

                  Medieval Iceland lasted 200 years before the rot of tithing set in, which allowed 5 families to take over most of the chieftainships over the following 100 years.

    2. I’m afraid a CC now would result in liberal Democrats creating a true European style socialist state, with “rights” like “health care” and “living wage” explicitly defined in the document.

      1. I believe it was Walter Williams who said something to the effect that 1000 years from now future historians will note this little blip of about 200 years when individual liberty flourished before things reverted to the historic norms. It sincerely breaks my heart.

      2. Either way we’re fucked. Better to go down fighting.

        1. Either go down fighting, or figure out how to make some money on it.

          I’m torn.

    3. A constitutional convention, at this point, would be the greatest threat to the few liberties that remain to us that you could imagine. It would essentially end up being a gut-the-bill-of-rights convention.

      Never, ever let these parasite scum near what we have left, ever.

      1. You would end up with something like ours. Is that what you want, OM? Is it??

      2. Gotta go with Epi on this one. We’d end up screwed with a constitutional convention. FOR TEH CHILDRENZ, COMMERCE, and OMG!TERRURISTS! would be enshrined in the new version as valid reasons to strip away your rights under virtually no pretext.

    4. I doubt that would change the fact that Constitutions are not self-enforcing.

    5. Wouldn’t it be simpler to just convoke the States to a Constitutional Convention to amend the Cosntitution?

      I thought the exact same thing. Maybe he didn’t expect to get as much out of state support as he did? If this idea gains traction, the amendment process makes much more sense.

      1. No way. The amendment process by any means requires 3/4 of the states, and you just wouldn’t get that for this. The litigation strategy doesn’t require anywhere near as widespread support.

    6. While others may be right that a convention would not cure all the problems with misinterpretation of the Constitution, primarily because everyone won’t agree on what those are, it is clear that this effort to have the SCt overturn its interstate commerce clause precedent based on the 10th Amendment is FAIL personified.

    7. For once I agree with you. At a minimum, the Commerce Clause just needs to go, and be replaced with a clause promoting Separation of Commerce and State.

      But we’d also need enforcement mechanisms. Rules mean shit unless someone enables them, and if “someone” is part of the power structure, that’s useless.

      Nullification would be helpful, but my personal windmill-tilting crusade would be random selection of Representatives (jury duty style), rather than elections. A Censor might be appropriate, with limitations (having to step down after invoking more extreme powers, for example).

      Shit, as long as we’re making up wishful amendments to the Constitution, I would eliminate the federal tax power altogether and force them to send a bill to the states, with each state being responsible for a fraction equal to its representation in the electoral college. Small states would get more representation, but would also have a heavier tax burden to balance it out.

  2. That would take too many states.

    1. Re: Robert,

      That would take too many states.
      3/4 of them, the same required to ratify any normal amendment that passes the House and Senate.

      1. Right. That’s too many states. In Marbut’s effort, all it takes is one state that manages to produce a situation with legal standing that wins as high as they can take it in federal courts. That could be just one state if things broke right, but preferably it should be a number of states scattered in different circuits.

  3. The wailing and gnashing of teeth coming from Team Blue will only increase if this gains traction.

  4. Without reading the article, I’m guessing the NRA is not onboard because they’re afraid he might lose. I shall now go read the article to confirm my prediction.

    1. And I’m right. Big shock.

  5. I saw this earlier. I especially liked the whiny quote about how “We reject spending on womyns’ health issues but we’ll pass this flagrantly unconstitutional law and spend money to defend it.”

    Boo hoo.

    And, of course, Schweitzer will be demonized by “real” Democrats for signing it if he ever tries to make the jump to national politics.

  6. I suspect the NRA doesn’t like the thought of their viselike grip on the “gun lobby” being usurped.

    1. My reading of the article was a litte different. It seems the NRA doesn’t want to fight the gun laws on the 10th admendment but on the 2nd admendment. Partly because they know the 10th admendment challenge is a lost cause. Mr. Marbut is trying to overturn Wickard v. Filburn.

      1. No, the NRA won’t take on cases where they think there is any possibility of losing or an adverse ruling. It’s why they stayed away from Heller and McDonald until the last minute, and then only filed amicus briefs.

  7. With a homemade .22-caliber rifle he calls the Montana Buckaroo, Gary Marbut dreams of taking down the federal regulatory state.

    Mr. Marbut is so on my list.

    1. Thought only women were on your list?

    2. Pay no attention to my retarded cousin.

  8. My generic analysis of the NRA and the people who run it is that they like being important (!), and anything which might serve to diminish that importance either on an institutional or personal level is deemed by them to be bad.

    *I am not a member. I do not follow their exploits closely.

    1. Just because the NRA supports gun rights, doesn’t mean that they oppose the commerce clause.

  9. I’ll be curious to see how the timing of this case reaching the Supreme Court, lines up with the ObamaCare challenges?

  10. What breaks my heart is that Wickard v. Filburn was unanimous. Not one justice thought differently? Not one thought there was some validity to Filburn’s point? No one pointed out that if the meaning of “interstate commerce” is stretched to include “anything local that could affect interstate commerce”, then the very distinction of “local” vs. “interstate” is meaningless?

    What infuriates me is the letter from the BATFE: “Federal law supersedes the [Montana Firearms Freedom] Act.” Uh, no, no it doesn’t. Federal law does not “supersede” state law; that’s what federalism means. Not that you would expect the jackbooted thugs at BATFE to know anything about the Constitution or federalism.

    1. Legitimate federal law does supercede state law, if (and only if) there is a conflict. However, the law isn’t legitimate, so it’s a moot point.

    2. I read that part of the decision, where they say that the Commerce Clause gives authority to regulate activities that are neither interstate nor commerce, and I see a group that is throwing up their hands in despair. They made it as clear as they could that this law was not within the plain language of the Commerce Clause.

      This was their bid to preserve some scrap of the Court’s independence and Constitutional function against Roosevelt’s court-packing threat.

      Sad, I know.

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