A 10-year battle using firearms to challenge the scope of federal power under the commerce clause ended with a whimper when the U.S. Supreme Court recently declined to hear MSSA v. Holder.
Montana Shooting Sports Association president Gary Marbut initiated the lawsuit after the Montana legislature passed the first Firearms Freedom Act in the U.S. The bill prohibited the feds from enforcing any federal gun laws on firearms manufactured in and kept within the borders of the state.
Although the state law was about firearms, it was not a “Second Amendment” bill. The legislation rested on the lack of federal authority to regulate intrastate commerce. The Montana law correctly declared that under the original meaning of the commerce clause, the federal government cannot legitimately regulate firearms that remain within the state borders. The commerce clause delegates authority to regulate “interstate commerce,” but not “intrastate commerce.”
“I wrote the Montana Firearms Freedom Act (MFFA) in 2004, specifically to use firearms as the vehicle to challenge federal power under the Constitution’s Interstate Commerce Clause (ICC),” Marbut told World Net Daily.
Now, 10 years later, he’s conceded defeat.
“This epic trip to the U.S. Supreme Court, and the court’s rejection of MSSA v. Holder have finally persuaded me that it is fruitless to expect any part of the federal government to control the lust for centralized and tyrannical power that our federal government displays,” he said.
I could have saved Marbut – a good man dedicated to a good cause – a lot of time, grief and money.
Of course federal employees staffing federal courts did not roll back federal power. They almost never do.
The robed oracles on the Supreme Court made commerce regulating power virtually limitless 72 years ago in the Wickard v. Filburn decision. Essentially, the court held that any activity merely affecting commerce qualified as interstate, even growing wheat on your own farm for your own use. The judges reasoned that the cultivating wheat meant that Mr. Filburn would not have buy as much, thus affecting the interstate market. And through the years, judges have redefined the original meaning commerce – basically trade – to any economic activity.
Of course, all of this represents a grievous bastardization of the Constitution that we should challenge vigorously. But a strategy to rectify these wrongs in the courts is a flawed one.
Consider this: between the founding and 2002, the Court ruled only 158 federal acts unconstitutional in whole or in part. Considering the amount of legislation passed by Congress through the history of the Republic- not too impressive. In fact. the court rarely overturns itself. And when it does, it often expands federal power instead of limiting it. The courts tend to stand on past decisions, or create more authority for the central government.
Take the majority opinion in the Obamacare case. Even while finally placing some limit on federal power regarding interstate commerce in Independent Business v Sebelius, and holding that it does not allow the federal government to mandate the purchase of insurance, Justice Roberts still affirmed the bastardized understanding of commerce power cemented in Wickard.
Passing a law simply to create a federal court challenge is a fools game and a losing strategy from the start. It always will be. We cannot expect the federal government to ever limit itself.
Worse than the time and energy wasted, the strategy actually harms the broader nullification movement. The inevitable defeat in court cements in the minds of the establishment and the general population the notion that nullification lacks any legitimacy. As a result, nullification bills all get tarred with the same brush – even those standing on firm legal footing.
I recently talked to a reporter about a Second Amendment Preservation Act based on the anti-commandeering doctrine. The bill would have prohibited state cooperation with enforcement of any federal gun laws. This approach even has the blessing of the Supreme Court. But this reporter confused the Second Amendment Preservation Act with the Firearms Freedom Act that failed in court. Even after explaining anti-commandeering and the strong legal basis it stands on, I’m pretty certain he didn’t get it.
In his mind, nullification was nullification – and all of it illegitimate.
Every lost legal battle makes legislators more reluctant to introduce bills challenging federal power. Every failed court case gives the media more ammo it can use to bludgeon nullification efforts. Every horrible ruling solidifies the myths about nullification.
Just stop with the courts!
So, how should we approach the fight against federal power? Pass legislation that actually hinders or blocks its application.
Instead of using bills as a pawn in a lawsuit to challenge illegitimate federal power, simply defy it. Stop state cooperation with enforcement of federal firearms laws, or Obamacare or NSA spying, and let the feds try to carry on with no state assistance. Take a lead from those who have effectively nullified federal marijuana laws. When the Supreme Court ruled that the feds could indeed regulate a few plants in a woman’s back yard, California just ignored it and went right on with its medical marijuana program. What happened next? Twenty other states followed suit. Then Colorado and Washington legalized recreational use. And the movement continues to swell.
The lawsuit strategy will fail 99 times out of 100, and it will hold back other efforts.
James Madison gave us a blueprint to stop federal overreach. It did not include suing in federal point. Let’s follow his plan, not rely on federal employees to do our bidding.
It won’t happen. It’s a road to failure.
Latest posts by Mike Maharrey (see all)
- The Commerce Clause: Not a Micromanaging Tool - September 7, 2014
- Necessary and Proper, Not Anything and Everything - September 3, 2014
- The General Welfare Clause is not about writing checks - August 28, 2014