How to Fail 101: Sue in Federal Court

“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.