This is the flaw in Montana’s firearm legislation: it ultimately leaves it up to the federal judiciary to decide whether it will acknowledge the State’s claim to sovereignty over local incidents of firearms manufactured in the State. During Prohibition it took a constitutional amendment to give Congress concurrent jurisdiction to punish local incidents of beverage alcohol (18th Amendment). They also were able to reach local incidents through revenue laws, acquiring jurisdiction by attaching a tax to the manufacture of alcohol (thus the dreaded “federal revenuer”). Then came the “war on drugs.” In this case what happened is that Congress found it could not effectively regulate interstate incidents of illegal drugs because it could not be known if this bunch of little white pills crossed state line, while this bunch of white pills did not. Therefore, Congress claimed the right to control ALL incidents of little white pills. There is at least a plausible basis for this, but what about local incidents of cultivation of marijuana? Now you have growing plants, rooted in the soil of a sovereign State, and no possible basis for mistaking the fact that they have not moved in interstate commerce. Yet, federal prosecution for cultivation of marijuana occurs all the time. Thus, where it took a constitutional amendment during prohibition, it now does not. Yet, I doubt it was any easier then to identify if beverage alcohol crossed state lines than it does today for little white pills.

So, merely having a stamp on the barrel of a gun showing it was manufactured in Montana will not necessarily negate federal control. Congress and the courts are intrinsically dishonest. If you don’t believe me, just ask anyone who has litigated these issues in federal court.

If the States are going to regain their sovereignty, they will need to chose their battles wisely and stick to their guns – maybe even literally. My thinking is that they should start with the problem of judicial activism. I think the American people are well aware of the problem of judicial activism and are fed up with the nation being kept in a state of constant turmoil by courts intruding into areas they have no right. I think the slaying of abortionist George Tiller only helps to underscore the problem. Abortion is a local question reserved for the States; the federal government had no business reaching out and “federalizing” this issue. If it had not, the slaying of Tiller probably would never have occurred (or the abortion of 60,000 late term pre-born babies for that matter).

Abortion is a hot button issue, so I would not recommend starting there. But I believe that most Americans are very supportive of public acknowledgement of God in Ten Commandment monuments, manger scenes, crosses, commencement prayers, etc. Those who take exception to these are very few. The spectacle of suddenly being told we cannot mention “God” in the pledge of allegiance has brought down public opinion against this sort of thing by the federal courts. Thus, I think a State would find wide spread public support for taking a stand here.

What they could do is to make legislative findings and declarations of fact as to the ORIGINAL INTENT of the 1st Amendment Establishment Clause and the 14th Amendment. They should make a long recital of the facts evidencing the historic right of the People and States to acknowledge God, beginning with the Mayflower Compact, and forward, tracing over 400 years of history. For example, the Constitutions of all 50 States acknowledge God. Having shown that it is their historic right to acknowledge God and that the 1st Amendment binds only Congress, and that it was no part of the ORIGINAL INTENT of the 14th Amendment to incorporate the 1st Amendment, the States should then claim sovereignty under the Tenth Amendment to acknowledge God. On the basis of their legislative findings and declarations of facts, the States must then enact penal statutes making it illegal to obey or attempt to enforce the order of a court purporting to require removal of a Ten Commandments monument, etc.

This would then set up an immediate conflict between “Judicial Activism versus Original Intent.” One has the moral authority of law and widespread public support, the other stands upon raw, naked power. I think that in any litigation that transpired the State would win, provided the State even consents to federal jurisdiction to litigate it. After all, the State Legislature will already have made findings and declarations of fact, there is nothing left to litigate! The facts are already in and the case has been decided: The States did not intend or consent to hand over their right to acknowledge God when the 14th Amendment was enacted. And who is there that will argue otherwise? If they do enter a federal court, they must begin by arguing the court has no subject matter jurisdiction. Lawyers hate to do this because it makes the judge mad and they want the judge on their side, but conceding federal jurisdiction is the first mistake and virtually gives away the case.

Naturally, a States must be willing to secede should the federal government be resolute in denying their rights. And they should, for who would want to live under a government that will not acknowledge God or any authority higher than itself, and wants to play the tyrant over the states and people?

Blessings,

There is a principle in the law that holds the parties to a lawsuit may not confer jurisdiction on a court by waiver or agreement. For example, if the jurisdictional limit in a small claims court is $10,000, you and I cannot maintain a lawsuit against each other in that court if the amount in controversy is $20,000. Even if the suit goes all the way to judgment in your favor in the amount of $1,000, it is void. Even though I might not have complained about lack of jurisdiction in the trial court, I can challenge the jurisdiction for the first time on appeal, and I will win. The judgment will be held to be void because the amount in controversy exceeded the trial court’s jurisdiction.

Now, let’s move that principle on over to the Constitution. If something is in fact Unconstitutional, the Unconstitutionality of it cannot be waived by agreement or acquiescense. It is what it is – Unconstitutional. A majority vote cannot make it Constitutional.

So, what if the trial court erroneously holds a taking under eminent domain is Constitutional, even though no just compensation was paid by the condemnor?

The court of appeals should clearly reverse it because compensation is a Constitutional requiremennt.

But what if the court of appeals affirms? Then, the US Sct should reverse it for the same reason.

Now, what if the US Sct affirms? Although it is the court of last resort, I believe not even the US Sct has the authority to transform something that is Unconstitutional into something that is Constitutional.

Therefore, I think many such opinions of the SCt are wrong, and a great many things still exceed the Constitution.

I do not believe the federal govermment, for example, has authority to set product safety standards, regulate wages, regulate child labor, run welfare programs, involve itself in education, and on and on….

I believe that every one of these areas of potential regulation was left to the states because, at the time of ratifying the Constitution, as shown by the language within it, none of the states were willing to cede such authority to the federal government. They were not going to let a majority of states band together and democratically invade their sovereignty.

Even if every single state agrees to something Unconstitutional, it remains Unconstitutional. The only remedy available to states in a position like that is to amend the Constitution. They cannot skip that step because it is a jurisdictional step.

What I think your question attempts to state is a point about the government and what it should or should not do.

I think your question attempts to make a point that government might have a legitimate interest in regulating behavior that otherwise would threaten the government.

First, the behavior does not threaten the government. One might argue it does in terms of health care costs, but just because the government assumes its way into a problem does not mean it HAS to be the government’s problem.

Second, while you correctly point out that we were assured a Republican form of government, that slightly misses the point. The Republican form of government we were guaranteed was also limited in its power over the individual, through Article I, Section 8 and also, through the Bill of Rights and subsequent Amendments.

So, “no,” they do not just get to vote on it.

Wait until Congress outlaws the internet, cheeseburgers or pet dogs. You will then see people asking how that could possibly be Constitutional.

But when it comes to smokers and drinkers (those whom we love to hate or could care less about), Constitutionality is never perceived as an issue.

Again, I say this is obvious and merely reinforces the point made by Michael. Maybe I am misunderstanding your question.

The point I made above was that this is Unconstitutional, but the majority does not care because they support such usurpations against the minority. Divide and conquer.

It is directly on point to Michael’s comment that, “We can’t just turn our heads because “they” are coming for someone we don’t like. Every time the government takes more power and violates another person’s rights is another step closer to you.”

Apples and oranges you’re comparing here.