State efforts to reclaim their jurisdiction are great. But in some respects, the states are still showing signs of apprehension of, and/or undue deference to, the federal government.

Various states have passed legislation, collectively referred to as “Firearms Freedom Acts.” Though they may vary in the details, a common thread in these acts seems to be that a state considers a firearm to be within its jurisdiction if it is manufactured within the state.

The obvious reason for this common thread is that if a gun entered from another state, the argument that it falls within federal jurisdiction under the Interstate Commerce Clause can be invoked. However, such an argument would be incorrect.

Congress has the power to regulate interstate commerce. Just because a gun crosses state lines does not mean it did so as a part of commerce. Many people move from state to state and take their belongings, including guns, with them. This is not commerce.

Secondly, there is a temporal issue raised by assuming any gun that has come from another state is within the ambit of federal regulatory jurisdiction. As stated, the federal government is empowered to regulate interstate commerce. But what if a gun entered a state as part of interstate trade in say, 1980, and here it is 2010? The gun is no longer the subject of any act of interstate commerce and has not been for 30 years. It is specious, at best, for anyone to believe that any product that ever was the subject of interstate commerce forever remains the subject of federal regulatory control.

Jurisprudence has evolved from asserting federal jurisdiction over “commerce among the several states,” as intended, to anything “affecting commerce among the several states.” There are legitimate reasons for the desire of the federal government to try to extend the reach of its jurisdiction in this manner. There are many scenarios in which purely intrastate activities can thwart the ability of Congress to exert its authority over interstate commerce. The possibilities are so many that even the founders might admit that intrastate activities can effectively frustrate the original intent to confer on Congress the power to regulate interstate commerce.

However, just because the federal government might experience frustration in wielding the power conferred on it does not mean the federal government can unilaterally change the construct of its power. In such cases, amendment is the process which was designed to remedy such problems.

What the federal government has done is to effectively re-write the Constitution to expand its authority and dispense with its burden to show it is operating within the legitimate confines of its authority. By construing Congress’ power to regulate things which affect interstate commerce, Congress does not have to concern itself with whether the thing it seeks to regulate is actually the subject of interstate commerce.

For example, some scholars have noted that Congress could not effectively regulate things if it had to become entangled in the almost impossible process of proving that the thing it seeks to regulate was the subject of interstate commerce. In short, a person seeking to avoid federal regulation could easily frustrate regulators by demanding, “Prove these carrots, shoes, flowers, etc. came from within another state.” In addition, what if XYZ Corp. produces widgets in Alabama and is moving them to its warehouse in Mississippi, where it will offer them for sale there? Is movement, without a transfer of title, commerce? Whether it is, should be, or should not be, here, we can easily see the problem is complex.

Undeniably, these issues would put a heavy burden on the federal government if it had to comply with the law as written, since, as the proponent asserting its jurisdiction, the burden is always on it to prove by preponderance every fact essential to its claim that it has jurisdiction. Without being able to trace things and to know the specifics of the transactions, if any, in which they are engaged, the federal government would lose its case.

But isn’t that what due process is all about? If a person has a claim against another person, or if the government has a claim against another person, common notions of due process have always held that the former has the burden of proof. The mere fact that the burden of proof is difficult, if not impossible, to meet in certain cases should not offer an excuse to ignore the burden and re-write the rules without following proper procedures.

In summary, to the extent the federal government might have difficulty in a great many cases to demonstrate its jurisdiction over things alleged to be the subject of interstate commerce, this does not mean the federal government, in the absence of Constitutional amendment, can simply restate its jurisdiction to make it extend to all things which affect interstate commerce. Had this been the scope of power granted to it, the Constitution could have been written that way. But it was not.

In reclaiming their proper jurisdiction, state legislators need to take heed that their role is to jealously guard their jurisdiction and to protect it from federal overreach. By so doing, the goal of protecting their citizens from federal excesses is served.

Accordingly, state legislators need to make sure they do not assume significant portions of their jurisdiction away. In the instance of Firearms Freedom Acts, there is no reason to assume that if a gun originates from another state, it is automatically the subject of federal jurisdiction under the Interstate Commerce Clause. The point of origin of a thing does not mean it is part of commerce.

Therefore, there is no logical reason why states enacting Firearms Freedom Acts should claim jurisdiction over only those guns which are manufactured in their states. States should be exercising jurisdiction over guns if (1) they are in the state, and (2) they are not currently engaged in a transaction that constitutes commerce between a person of the state and a person of another state.

Jeff Matthews [send him email] is a practicing attorney in Houston. He graduated from the University of Texas, School of Law in 1993 and was licensed that year.

Copyright © 2010 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit to the author and this website is given.

For decades, using a tortured definition of “interstate commerce,” Congress has claimed the authority to regulate, control, ban, or mandate virtually everything – from wheat grown on one’s own land for personal consumption, to weed grown in an individual’s own home for the same purpose, to guns manufactured, sold and kept in state boundaries.

Today, Dave Freudenthal, the Democrat Governor of Wyoming Governor stood up and gave a resounding NO to this by signing into law House Bill 95 (HB0095), the Firearms Freedom Act. Wyoming joins Montana, Tennessee and Utah as the fourth state to make the act law.

The bill states:

A personal firearm, a firearm action or receiver, a firearm accessory, or ammunition that is manufactured commercially or privately in the state to be used or sold within the state is not subject to federal law or federal regulation, including registration, under the authority of congress to regulate interstate commerce.

The bill easily passed the House and the Senate passed it unanimously, by a vote of 30-0.

THE COMMERCE CLAUSE

If, like any legal document, the words of the Constitution (and its amendments) mean today just what they meant when it was signed, then we must understand the original meaning of words in Article I, Section 8, Clause 3 of the Constitution – the “Interstate Commerce Clause.” It give Congress the power to:

“regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

According to Constitutional scholar Randy Barnett, the original meaning of “commerce” was limited to the “trade and exchange” of goods and transportation for this purpose. The original meaning of “to regulate” generally meant “to make regular” -that is, to specify how an activity may be transacted-when applied to domestic commerce, but when applied to foreign trade also included the power to make “prohibitory regulations.” “Among the several States” meant between persons of one state and another.

According to Constitutional scholar Rob Natelson, the commerce clause gave Congress power to regulate interstate commerce — not any “matters that have significant spillover effects across state lines.” The Constitutional Convention rejected the wording of the Virginia Plan, which arguably would have let the Federal government regulate any activity with interstate spillover. In other words, the Founders made the deliberate decision to leave many activities with spillover effects to the states.

Not included in this power to regulate commerce “across state lines” is the authority to regulate activites that are non-economic or solely INTRAstate, which the language of the Firearms Freedom Act addresses.

NULLIFICATION

Laws of the federal government are to be supreme in all matters pursuant to the delegated powers of U.S. Constitution.  When D.C. enacts laws outside those powers, state laws trump. And, as Thomas Jefferson would say, when the federal government assumes powers not delegated to it, those acts are “unathoritative, void, and of no force” from the outset.

The principle behind such legislation is nullification, which has a long history in the American tradition. When a state ‘nullifies’ a federal law, it is proclaiming that the law in question is void and inoperative, or ‘non-effective,’ within the boundaries of that state; or, in other words, not a law as far as the state is concerned. Implied in such legislation is that the state apparatus will enforce the act against all violations – in order to protect the liberty of the state’s citizens.

Implied in any nullification legislation is enforcement of the state law. In the Virginia Resolution of 1798, James Madison wrote of the principle of interposition:

That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.

HB95 includes this principle, and imposes penalties on federal agents for violations of the law:

Any official, agent or employee of the United States government who enforces or attempts to enforce any act, order, law, statute, rule or regulation of the United States government upon a personal firearm, a firearm accessory or ammunition that is manufactured commercially or privately in Wyoming and that remains exclusively within the borders of Wyoming shall be guilty of a felony and, upon conviction, shall be subject to imprisonment for not more than two (2) years, a fine of not more than two thousand dollars ($2,000.00), or both.

RECLAIMING INTRASTATE COMMERCE

A long train of improper judicial precedents and federal usurpations of power under Article 1, Section 8, Clause 3 are not supreme simply due to the fact they are outside the scope of power delegated to the federal government.

By signing HB95, Gov. Freudenthal places Wyoming in a position of proper authority while pressing the issue of state supremacy back into the public sphere. 

In 1942 no state intervened or challenged the federal claim to regulate non-commercial intrastate activity in Wickard v Filburn. This landmark court decision claimed to give the federal government the power, under the guise of “interstate commerce,” to control the growing of a plant in one’s own backyard – and consuming it at home

This ruling marked a reversal of precedent set over the course of more than 150 years where the federal courts had ruled against such loose interpretation. The federal government now claims authority – under the commerce clause – to control or ban what you grow and consume at home, to tell you how big your toilet can be, and quite possibly, whether or not you’re able to decide to not purchase a health insurance plan. Such powers are not what the founders and ratifiers gave Congress in the Constitution.

Today, Gov. Freudenthal helped draw a line that should have been drawn by the states in 1942.

CLICK HERE to view the Tenth Amendment Center’s Legislative Tracking Page for Current Nullification Efforts

Michael Boldin [send him email] is the founder of the Tenth Amendment Center

Copyright © 2010 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.

NH Legislators again raise the bar for the 10th Amendment Movement – felony charges proposed for federal agents violating gun rights in New Hampshire

Pre-filed for the 2010 legislative session in New Hampshire, House Bill 1285 (HB1285) seeks to “exempt firearms, firearm accessories, and ammunition manufactured in New Hampshire from federal law and regulation.”

Introduced by State Rep. Dan Itse, the bill currently has 5 other co-sponsors, including 10-4 pledge signer, Carol Vita. (h/t NHLiberty.org)

While the bill’s title focuses on federal gun regulations, it has far more to do with the 10th Amendment’s limit on the power of the federal government. It states, in part:

The Tenth Amendment to the Constitution for the United States guarantees to the states and their people all powers not granted to the federal government elsewhere in the constitution and reserves to the State and people of New Hampshire certain powers as they were understood at the time that New Hampshire ratified the Bill of Rights, particularly the Tenth Amendment in 1790. The guaranty of those powers is a matter of contract between the State and people of New Hampshire and the several States comprising the United States as of the time that the compact was agreed upon and adopted by New Hampshire and the several States comprising the United States.

The regulation of inter-state commerce was delegated by the People of the Several States to the federal government in the US Constitution. Since the regulation of intra-state commerce was not delegated to the federal government, this authority, as codified in law by the 10th Amendment, remains with the State governments or the People themselves.

HB1285 includes this principle in its text:

a personal firearm, a firearm accessory, or ammunition that is manufactured commercially or privately in New Hampshire and that remains within the state of New Hampshire is not subject to federal law or taxation, or federal regulation, including registration, under the authority of congress to regulate interstate commerce. It is declared by the legislature that those items have not traveled in interstate commerce.

The authority of congress to regulate interstate commerce in basic materials does not include authority to regulate firearms, firearms accessories, and ammunition made in New Hampshire from those materials. Firearms accessories that are imported into New Hampshire from another state and that are subject to federal regulation as being in interstate commerce do not subject a firearm to federal regulation under interstate commerce because they are attached to or used in conjunction with a firearm in New Hampshire.

Unlike many other states that are considering Firearms Freedom Acts (FFA), the New Hampshire legislation includes official sanctions on any state or federal official violating the law, if adopted.

State Agents:

Any public servant of the State of New Hampshire as defined in RSA 640:2 that enforces or attempts to enforce a act, order, law, statute, rule or regulation of the government of the United States upon a personal firearm, a firearm accessory, or ammunition that is manufactured commercially or privately in New Hampshire and that remains within the State of New Hampshire shall be guilty of a class A misdemeanor.

Federal Agents:

Any official, agent, or employee of the government of the United States, or employee of a corporation providing services to the government of the United States that enforces or attempts to enforce a act, order, law, statute, rule or regulation of the government of the United States upon a personal firearm, a firearm accessory, or ammunition that is manufactured commercially or privately in New Hampshire and that remains within the State of New Hampshire shall be guilty of a class B felony. (emphasis added)

NULLIFICATION

Some supporters of the legislation say that a successful application of such a state-law would set a strong precedent and open the door for states to take their own positions on a wide range of activities that they see as not being authorized to the Federal Government by the Constitution.

The principle behind such legislation is nullification, which has a long history in the American tradition. When a state ‘nullifies’ a federal law, it is proclaiming that the law in question is void and inoperative, or ‘non-effective,’ within the boundaries of that state; or, in other words, not a law as far as the state is concerned.

All across the country, activists and state-legislators are pressing for similar legislation, to nullify specific federal laws within their states.

A proposed Constitutional Amendment to effectively ban national health care will go to a vote in Arizona in 2010. Thirteen states now have some form of medical marijuana laws – in direct contravention to federal laws which state that the plant is illegal in all circumstances. And, massive state nullification of the 2005 Real ID Act has rendered the law nearly void.

INTERPOSITION

In the Virginia Resolution of 1798, James Madison wrote of the principle of interposition:

That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.

Here Madison asserts what is implied in nullification laws – that state governments not only have the right to resist unconstitutional federal acts, but that, in order to protect liberty, they are “duty bound to interpose” or stand between the federal government and the people of the state.

Felony charges for violations of citizens’ rights such as proposed in HB1285 are certainly an effort to interpose between state residents and an overreaching federal government. Time will tell if the State Apparatus will follow through with such needed actions should the bill pass.

CLICK HERE – to view the Tenth Amendment Center’s Firearms Freedom Act Tracking Page or visit FirearmsFreedomAct.com

Michael Boldin is the founder of the Tenth Amendment Center

Copyright © 2009 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.

Missouri State Representative Cynthia Davis has introduced the “Firearms Freedom Act” (HB1230) – prefiled for the 2010 legislative session. The bill “Asserts the right of the State of Missouri to regulate the intrastate use and acquisition of certain firearms pursuant to the reserved powers of the state over intrastate commerce and the Second Amendment right to keep and bear arms.”

While the bill’s title focuses solely federal gun regulations, it has far more to do with the 10th Amendment’s mandate that powers not delegated to the federal government are “reserved to the states, respectively, or to the people.” It states:

Amendment X of the Constitution of the United States guarantees to the states and their people all powers not granted to the federal government elsewhere in the Constitution and reserves to the state and people of Missouri certain powers as they were understood at the time that Missouri was admitted to statehood. The guarantee of those powers is a matter of contract between the state and people of Missouri and the United States as of the time that the compact with the United States was agreed upon and adopted by Missouri and the United State

Amendment II of the Constitution of the United States reserves to the people the right to keep and bear arms as that right was understood at the time that Missouri was admitted to statehood, and the guarantee of the right is a matter of contract between the state and people of Missouri and the United States as of the time that the compact with the United States was agreed upon and adopted by Missouri and the United States

Some supporters of the legislation say that a successful application of such a state-law would set a strong precedent and open the door for states to take their own positions on a wide range of activities that they see as not being authorized to the Federal Government by the Constitution.

Firearms Freedom Acts have already passed in both Montana and Tennessee, and have been introduced in a number of other states around the country. (Click here to see the full list)

There’s been no lack of controversy surrounding these laws, either. The Tenth Amendment Center recently reported on the ATF’s position that such laws don’t matter:

The Federal Government, by way of the Bureau of Alcohol, Tobacco and Firearms expressed its own view of the Tenth Amendment this week when it issued an open letter to ‘all Tennessee Federal Firearms Licensees’ in which it denounced the opinion of Beavers and the Tennessee legislature. ATF assistant director Carson W. Carroll wrote that ‘Federal law supersedes the Act’, and thus the ATF considers it meaningless.

Constitutional historian Kevin R.C. Gutzman sees this as something far removed from the founders’ vision of constitutional government:

“Their view is that the states exist for the administrative convenience of the Federal Government, and so of course any conflict between state and federal policy must be resolved in favor of the latter.”

“This is another way of saying that the Tenth Amendment is not binding on the Federal Government. Of course, that amounts to saying that federal officials have decided to ignore the Constitution when it doesn’t suit them.”

Advocates of these efforts say it doesn’t matter if the federal government disagrees, or even threatens states over funding, as they did recently with Oklahoma. Gary Marbut, author of the Montana Firearms Freedom Act, and founder of FirearmsFreedomAct.com took this position in a recent interview with the Tenth Amendment Center:

“We’re not depending on permission from federal judges to be able to effectuate our state-made guns bills. And, we’re working on other strategies to wrest essential and effective power from the federal government and put it where it belongs.“

The principle behind such legislation is nullification, which has a long history in the American tradition. When a state ‘nullifies’ a federal law, it is proclaiming that the law in question is void and inoperative, or ‘non-effective,’ within the boundaries of that state; or, in other words, not a law as far as the state is concerned.

All across the country, activists and state-legislators are pressing for similar legislation, to nullify specific federal laws within their states.

A proposed Constitutional Amendment to effectively ban national health care will go to a vote in Arizona in 2010. Thirteen states now have some form of medical marijuana laws – in direct contravention to federal laws which state that the plant is illegal in all circumstances. And, massive state nullification of the 2005 Real ID Act has rendered the law virtually null and void.

While some advocates concede that a federal court battle has a slim chance of success, they point to the successful nullification of the Real ID Act as a blueprint to resist various federal laws that they see as outside the scope of the Constitution.

Some say that each successful state-level resistance to federal programs will only embolden others to try the same – resulting in an eventual shift of power from the federal government to the States and the People themselves.

Michael Boldin is the founder of the Tenth Amendment Center

Copyright © 2009 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.

New Hampshire attorney E.F. Nappen writes that the Firearms Freedom Acts being introduced and enacted in various states are subject to ” The Achilles Heels of the Firearms Freedom Act.”

He argues that the inclusion of NFA (National Firearms Act) items (e.g., suppressors or short-barreled rifles) in the asserted exemption from federal authority will cause the Acts to fail in court because the NFA regulates under federal tax power, not federal commerce clause power.

Of course Nappen is correct to assert that getting the permission of federal judges in approval of the Acts will be a difficult exercise. The federal government (including its judicial branch) doesn’t surrender power readily.

As the author of the original Montana Firearms Freedom Act (MFFA) that is being cloned around the Nation, I’ve long known that litigating the MFFA would be a chancy proposition. But, I believe, there is more to hope for than Nappen credits.

Addressing Nappen’s concern about NFA items, it is true that the NFA purports to be founded in the power given to Congress in the Constitution to tax. However, there are two sorts of taxes: 1) Those enacted and implemented primarily to raise revenue, and 2) those enacted and implemented to affect commerce.

The federal excise tax on firearms and ammunition is clearly the former sort, since it raises millions of dollars the feds dole out to the states for wildlife management. The various firearms freedoms acts do not challenge or affect this genuine revenue raising. It is expected that if litigation under the MFFA is successful, it will still leave the excise tax on state-made and state-retained firearms and ammunition in place, and makers will likely remain liable for this tax.

The taxes levied under the NFA, however, are of the second sort, intended primarily to affect (restrict) commerce in these items. The NFA probably brings in less revenue than the cost of enforcement, so it’s probably a net loss to the federal government.

Therefore, although it may claim to be done under Congress’s tax power, that claim will fail and the fall-back position of the federal government will be Congress’s authority to regulate commerce “among the states.”

Thus, NFA-asserted tax power would actually fall exactly under the commerce clause power challenge that is the core of the MFFA and its clones around the U.S.

Also, it’s helpful to keep in mind that the MFFA and its clones are really a states’ rights exercise, a challenge to federal commerce clause power on Tenth Amendment and other grounds. It is more about federal power than firearms. States’ rights are the subject; firearms are the object.

The Montana Shooting Sports Association has filed its promised legal challenge over the MFFA in federal court. The most powerful card we have to play is “emerging consensus,” judicial jargon for “There are mobs of peasants at the palace gates bearing pitchforks and torches and we’d better pay attention to what they want.”

That two states have enacted Firearms Freedom Acts, ten states have introduced them, and 20 other states are poised to introduce their own is an “emerging consensus” that the federal judiciary probably won’t actively acknowledge, but that those in the black robes will be aware of and pay attention to.

Does this mean that litigating the MFFA will be a slam-dunk? Absolutely not! Nappen is correct that the barriers are high and well-established. Still, it’s high time for this challenge to be mounted. Nappen would serve us all better by charging his legal musket than by being so ready to concede the field to the other side.

From Nappen’s Website: “Aggressive fighting for the right is the noblest sport the world affords.”
–Theodore Roosevelt

Gary Marbut [send him email] is President of the Montana Shooting Sports Association and author of the Montana Firearms Freedom Act, which became state law on October 1, 2009

In states around the country, there’s a growing movement to address and resist two of the most abused parts of the Constitution – the Commerce Clause and the 2nd Amendment.  Already being considered in a number of state legislatures, and passed as law in Montana and Tennessee this year, the Firearms Freedom Act (FFA) is a state law that seeks to do just that.

The latest to join the FFA movement?  Kentucky.  Pre-filed for the 2010 legislative session, HB87 seeks to “Create new sections of KRS Chapter 237, relating to firearms, firearm accessories and ammunition that are made in Kentucky, marked made in Kentucky, and used in Kentucky, to specify that these items are exempt from federal law”

While the FFA’s title focuses on federal gun regulations, it has far more to do with the 10th Amendment’s limit on the power of the federal government.  The bills in state houses contain language such as the following:

“federal laws and regulations do not apply to personal firearms, firearm accessories, or ammunition that is manufactured in [this state] and remains in [state]. The limitation on federal law and regulation stated in this bill applies to a firearm, a firearm accessory, or ammunition that is manufactured using basic materials and that can be manufactured without the inclusion of any significant parts imported into this state.”

NULLIFICATION

Some supporters of the legislation say that a successful application of such a state-law would set a strong precedent and open the door for states to take their own positions on a wide range of activities that they see as not being authorized to the Federal Government by the Constitution.

The principle behind such legislation is nullification, which has a long history in the American tradition. When a state ‘nullifies’ a federal law, it is proclaiming that the law in question is void and inoperative, or ‘non-effective,’ within the boundaries of that state; or, in other words, not a law as far as the state is concerned.

All across the country, activists and state-legislators are pressing for similar legislation, to nullify specific federal laws within their states.

A proposed Constitutional Amendment to effectively ban national health care will go to a vote in Arizona in 2010.  Fourteen states now have some form of medical marijuana laws – in direct contravention to federal laws which state that the plant is illegal in all circumstances.  And, massive state nullification of the 2005 Real ID Act has rendered the law nearly void.

ENOUGH IS ENOUGH

Supporters say the growth of such a movement is long overdue. 

“For far too long elected officials and unelected bureaucrats at the federal level have passively forgotten or actively neglected the Tenth Amendment that guarantees rights not enumerated in the Constitution be left to the individual states,” said Minnesota State Rep. Tom Emmer, who introduced an FFA in his state. “The willful disregard of the Tenth Amendment in relation to a citizen’s right to bear arms isn’t the only constitutional infringement that we should be worried about, but it is one that has been singled out by the new administration.”

“Enough is enough,” urged Tennessee State Senator Mae Beavers. “Our founders fought too hard to ensure states’ sovereignty and I am sick and tired of activist federal officials and judges sticking their noses where they don’t belong.”

LITIGATION

In October, the Montana Shooting Sports Association (MSSA) and the Second Amendment Foundation (SAF) filed a lawsuit in federal court in Missoula, MT to validate the principles and terms of the Montana Firearms Freedom Act (MFFA).

“We feel very strongly that the federal government has gone way too far in attempting to regulate a lot of activity that occurs only in-state,” explained MSSA President Gary Marbut. “The Montana Legislature and governor agreed with us by enacting the MFFA.  It’s time for Montana and her sister states to take a stand against the bullying federal government, which the Legislature and Governor have done and we are doing with this lawsuit. We welcome the support of many other states that are stepping up to the plate with their own firearms freedom acts.”

Even the most ardent supporters suggest that the real test will come if the federal courts rule against the FFA.  Will they give up at that point, or will they follow in the footsteps of medical marijuana activists around the country? 

The latter faced down nearly the entire federal apparatus – federal agencies who didn’t recognize state law, countless federal raids and arrests, and a Supreme Court that ruled against their cause in 2005.  Even with such stacked odds, they persisted in their state-level efforts, and today, enough states have medical marijuana laws that the federal government is unable (or unwilling) to oppose them.

Only time will tell if gun rights activists have the same courage.

Copyright © 2009 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.

According to a report published on the Tenth Amendment Center’s web site, “Introduced in the Ohio House on October 16, 2009, the ‘Firearms Freedom Act’ (HB-315) seeks ‘To enact section 2923.26 of the Revised Code to provide that ammunition, firearms, and firearm accessories that are manufactured and remain in Ohio are not subject to federal laws and regulations derived under Congress’ authority to regulate interstate commerce and to require the words “Made in Ohio” be stamped on a central metallic part of any firearm manufactured and sold in Ohio.’”

The report went on to say, “While the HB315′s title focuses on federal gun regulations, it has far more to do with the 10th Amendment’s limit on the power of the federal government. It specifically states:

“‘The regulation of intrastate commerce is vested in the states under the Ninth and Tenth Amendments to the United States Constitution, particularly if not expressly preempted by federal law. The congress of the United States has not expressly preempted state regulation of intrastate commerce pertaining to the manufacture on an intrastate basis of firearms, firearm accessories, and ammunition.’

“Some supporters of the legislation say that a successful application of such a state-law would set a strong precedent and open the door for states to take their own positions on a wide range of activities that they see as not being authorized to the Federal Government by the Constitution.”

See the report here.

Two states have already passed their own Firearms Freedom Acts: Montana and Tennessee. And, along with Ohio, at least 7 other states have introduced similar bills. Those states are Alaska, Florida, Michigan, Minnesota, Pennsylvania, South Carolina, and Texas.

More information regarding the status of these State bills can be seen here.

As you might suspect, the federal government doesn’t take too kindly to these State laws. In fact, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) sent an open letter to all Montana and Tennessee firearms dealers denouncing the State laws. ATF assistant director Carson Carroll wrote that “Federal law supersedes the Act.”

The Tenth Amendment Center quotes constitutional historian Kevin Gutzman as correctly stating, “Their [ATF's] view is that the states exist for the administrative convenience of the Federal Government, and so of course any conflict between state and federal policy must be resolved in favor of the latter.

“This is another way of saying that the Tenth Amendment is not binding on the Federal Government. Of course, that amounts to saying that federal officials have decided to ignore the Constitution when it doesn’t suit them.”

Ah! But that’s just the problem: the federal government has been ignoring the Constitution for decades–so much so that if there is going to be any restoration of genuine liberty in the country, the states are going to have to stand up to this out-of-control national leviathan and say, “No.” And they are going to have to say it loudly enough for Washington to get the message. And I cannot think of a freedom issue that is better to “draw a line in the sand” for than the issue of the right of the people to keep and bear arms.

At the end of the day, the Second Amendment was never about hunting or target shooting. It has always been about protecting the people and states against federal tyranny.

The Second Amendment itself states, “A well regulated Militia, BEING NECESSARY TO THE SECURITY OF A FREE STATE, the right of the people to keep and bear Arms shall not be infringed.” (Emphasis added.) Note that the purpose of the right to keep and bear arms was to insure “the security of a FREE STATE.” (Emphasis added.) “Free from what?” you ask. Free from federal tyranny. Free from an overbearing, encroaching, heavy-handed, would-be national government.

The founders–even the Centralists of the day–all acknowledged that the right to keep and bear arms was, first of all, for the protection of the people against government tyranny. Observe:

“[I]f circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens.” (Alexander Hamilton, The Federalist Papers, Number 29)

“While the people have property, arms in their hands, and only a spark of noble spirit, the most corrupt Congress must be mad to form any project of tyranny.” (Rev. Nicholas Collin, Fayetteville [NC] Gazette, October 12, 1789)

“The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government.” (Thomas Jefferson)

“Who are the militia? Are they not ourselves? . . . Congress has no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American . . . [T]he unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.” (Tench Coxe, ally of James Madison and member of the Continental Congress, Freeman’s Journal, February 20, 1778)

Coxe also said, “As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article [the Second Amendment] in their right to keep and bear their private arms.” (Remarks on the First Part of the Amendments to the Federal Constitution, Philadelphia Federal Gazette, June 18, 1789)

So, for now, 10 states have proposed–and 2 have passed–a Firearms Freedom Act, properly declaring that federal authority granted in the Constitution regarding interstate commerce cannot apply to products (firearms, in this case) that are manufactured and sold within the territory of each respective State. In other words, 10 States are serving notice to Washington, D.C., that they are going to insist that the federal government stop ignoring the Constitution of the United States.

In the same vein, Tennessee State legislator Susan Lynn recently sent an open letter to the State legislative bodies of the other 49 states stating:

“On June 23, 2009, House Joint Resolution 108, the State Sovereignty Resolution, was signed by Governor Phil Bredesen. The Resolution created a committee which has as its charge to:

• Communicate the resolution to the legislatures of the several states,
• Assure them that this State continues in the same esteem of their friendship,
• Call for a joint working group between the states to enumerate the abuses of authority by the federal government, and
• Seek repeal of the assumption of the powers and the imposed mandates.”

In the body of her letter, Rep. Lynn states, “The role of our American government has been blurred, bent, and breached. The rights endowed to us by our creator must be restored.”

The Tennessee State representative continued by saying, “The Constitution does not include a congressional power to override state laws. It does not give the judicial branch unlimited jurisdiction over all matters. It does not provide Congress with the power to legislate over everything. This is verified by the simple fact that attempts to make these principles part of the Constitution were soundly rejected by its signers.

“With this in mind, any federal attempt to legislate beyond the Constitutional limits of Congress’ authority is a usurpation of state sovereignty–and unconstitutional.”

See Rep. Lynn’s letter here.

This is a battle that is just beginning to heat up, but promises to get red-hot in the not-too-distant future. As for me and my house, we believe this showdown is long overdue. To quote Patrick Henry, “Let it come! I repeat it, Sir, let it come!”

Chuck Baldwin is a radio broadcaster, syndicated columnist, and pastor dedicated to preserving the historic principles upon which America was founded. He was the Constitution Party’s Nominee for president in 2008. Visit his website at www.chuckbaldwinlive.com

Copyright © 2009 Chuck Baldwin

The bill was authored by State Representatives Morgan and Martin, and currently has 15 other co-sponsors.  (h/t BuckeyeFirearms.org and OhioFreedom.com)

While the HB315’s title focuses on federal gun regulations, it has far more to do with the 10th Amendment’s limit on the power of the federal government.  It specifically states:

The regulation of intrastate commerce is vested in the states under the Ninth and Tenth Amendments to the United States Constitution, particularly if not expressly preempted by federal law. The congress of the United States has not expressly preempted state regulation of intrastate commerce pertaining to the manufacture on an intrastate basis of firearms, firearm accessories, and ammunition.

Some supporters of the legislation say that a successful application of such a state-law would set a strong precedent and open the door for states to take their own positions on a wide range of activities that they see as not being authorized to the Federal Government by the Constitution.

Firearms Freedom Acts have already passed in both Montana and Tennessee, and have been introduced in a number of other states around the country. There’s been no lack of controversy surrounding them, either.  The Tenth Amendment Center recently reported on the ATF’s position that such laws don’t matter:

The Federal Government, by way of the Bureau of Alcohol, Tobacco and Firearms expressed its own view of the Tenth Amendment this week when it issued an open letter to ‘all Tennessee Federal Firearms Licensees’ in which it denounced the opinion of Beavers and the Tennessee legislature.  ATF assistant director Carson W. Carroll wrote that ‘Federal law supersedes the Act’, and thus the ATF considers it meaningless.

Constitutional historian Kevin R.C. Gutzman sees this as something far removed from the founders’ vision of constitutional government:

“Their view is that the states exist for the administrative convenience of the Federal Government, and so of course any conflict between state and federal policy must be resolved in favor of the latter.”

“This is another way of saying that the Tenth Amendment is not binding on the Federal Government. Of course, that amounts to saying that federal officials have decided to ignore the Constitution when it doesn’t suit them.”

Advocates of these efforts say it doesn’t matter if the federal government disagrees, or even threatens states over funding, as they did recently with Oklahoma.  Gary Marbut, author of the Montana Firearms Freedom Act, and founder of http://www.firearmsfreedomact.com/ took this position in a recent interview with the Tenth Amendment Center:

“We’re not depending on permission from federal judges to be able to effectuate our state-made guns bills.  And, we’re working on other strategies to wrest essential and effective power from the federal government and put it where it belongs.“

The principle behind such legislation is nullification, which has a long history in the American tradition. When a state ‘nullifies’ a federal law, it is proclaiming that the law in question is void and inoperative, or ‘non-effective,’ within the boundaries of that state; or, in other words, not a law as far as the state is concerned.

All across the country, activists and state-legislators are pressing for similar legislation, to nullify specific federal laws within their states.

A proposed Constitutional Amendment to effectively ban national health care will go to a vote in Arizona in 2010.  Fourteen states now have some form of medical marijuana laws – in direct contravention to federal laws which state that the plant is illegal in all circumstances.  And, massive state nullification of the 2005 Real ID Act has rendered the law nearly void.

While many advocates concede that a federal court battle has a slim chance of success, they point to the successful nullification of the Real ID Act as a blueprint to resist various federal laws that they see as outside the scope of the Constitution.

Some say that each successful state-level resistance to federal programs will only embolden others to try the same – resulting in an eventual shift of power from the federal government to the States and the People themselves.

Copyright © 2009 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.

Pennsylvania State Representative Sam Rohrer has introduced the “Firearms Freedom Act” (HB1988) for consideration in the state legislature.    The bill is “An Act prohibiting certain firearms, firearm accessories or ammunition from being subject to Federal law or Federal regulation.”

HB1988 currently has 48 additional co-sponsors, and according to FirearmsFreedomAct.com, is similar to bills recently enacted into law in both Montana and Tennessee.

While the bill seems to focus solely on federal gun regulations, it has far more to do with the 10th Amendment’s limit on the power of the federal government.  It specifically states:

The regulation of intrastate commerce is vested in the states under the 9th and 10th Amendments to the Constitution of the United States, particularly if not expressly preempted by federal law. Congress has not expressly preempted state regulation of intrastate commerce pertaining to the manufacture on an intrastate basis of firearms, firearms accessories, and ammunition.

Rohrer, in a recent letter to Pennsylvania House Members, addressed the issue of the commerce clause:

Under the current, expansive interpretation of the Interstate Commerce Clause in Article I, Section 8 of the U.S. Constitution, it is permissible for the federal government to regulate the sale of goods that are manufactured and sold exclusively within a state’s borders. Effectively, the federal courts hold that if a product might possibly find its way into streams of interstate commerce, federal laws to regulate that product are appropriate. The product need not actually be sold between states.

In 1942, the U.S. Supreme Court ruled against a farmer who was fined by the federal government for growing too much wheat. Effectively, the argument in Wickard v. Filburn was that the wheat he grew and consumed himself would lead to decreased wheat sales in other states, so it fell under federal jurisdiction because of the interstate commerce clause.

As recently as 2005 (Gonzales v. Raich), the U.S. Supreme Court cited Wickard as standing for the proposition that “Congress can regulate purely intrastate activity that is not itself “commercial,” in that it is not produced for interstate sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.”

According to the U.S. Supreme Court, wheat (in Wickard) and medical marijuana (in Raich) are completely indistinguishable from such products made and sold in interstate commerce, so federal regulation is appropriate.

Under my bill, the policy of this Commonwealth would be that firearms and firearm accessories manufactured and exclusively sold in the Commonwealth of Pennsylvania, carrying the brand “Made in Pennsylvania” (all clear indicators of intrastate commerce), would be subject only to state law.

The principle behind such legislation is nullification, which has a long history in the American tradition. When a state ‘nullifies’ a federal law, it is proclaiming that the law in question is void and inoperative, or ‘non-effective,’ within the boundaries of that state; or, in other words, not a law as far as the state is concerned.

All across the country, activists and state-legislators are pressing for similar legislation to nullify specific federal laws within their states.

A proposed State Constitutional Amendment to effectively ban national health care will go to a vote in Arizona in 2010, and up to 10 states may consider similar Amendment proposals next session.   And, thirteen states now have some form of medical marijuana laws in direct contravention to federal laws which state that the plant is illegal in all circumstances.

While some advocates and legal theorists concede that a 10th Amendment federal court battle has a slim chance of success, they point to the successful nullification of the Real ID Act as a blueprint to resist various federal laws that they see as outside the scope of the Constitution.

In the past 2 years, nearly two dozen state legislatures passed resolutions and laws refusing to implement the 2005 Real ID Act.   Because of this, and without congressional repeal, The Bush-era law is effectively null and void.

Some advocates of these efforts say it doesn’t matter whether or not the federal government agrees, or even if it threatens states over funding, as they did recently with Oklahoma.  Gary Marbut, author of the Montana Firearms Freedom Act, took this position in a recent interview with the Tenth Amendment Center:

“We’re not depending on permission from federal judges to be able to effectuate our state-made guns bills.  And, we’re working on other strategies to wrest essential and effective power from the federal government and put it where it belongs.“

Whether or not state legislators have the backbone to resist if federal officials strongly disagree remains to be seen.  But either way, as nullification efforts spread, it points to a growing state-level rebellion to the federal government.

Copyright © 2009 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.

Introduced in the Michigan House on August 11, 2009, the “Firearms Freedom Act” (HB-5232) seeks “to make certain findings regarding intrastate commerce; to prohibit federal regulation of firearms, firearms accessories, and ammunition involved purely in intrastate commerce in [the State of Michigan]; to provide for certain exceptions to federal regulation; and to establish certain manufacturing requirements.”

The bill was authored by Rep. Phillip Pavlov and currently has 44 co-sponsors.

While the HB5232′s title focuses on federal gun regulations, it has far more to do with the 10th Amendment’s limit on the power of the federal government.  It specifically states:

The regulation of intrastate commerce is vested in the states under amendments IX and X of the constitution of the United States, particularly if not expressly preempted by federal law. Congress has not expressly preempted state regulation of intrastate commerce pertaining to the manufacture on an intrastate basis of firearms, firearms accessories, and ammunition.

Some supporters of the legislation say that a successful application of such a state-law would set a strong precedent and open the door for states to take their own positions on a wide range of activities that they see as not being authorized to the Federal Government by the Constitution.

Firearms Freedom Acts have already passed in both Montana and Tennessee, and have been introduced in a number of other states around the country. There’s been no lack of controversy surrounding them, either.  The Tenth Amendment Center recently reported on the ATF’s position that such laws don’t matter:

The Federal Government, by way of the Bureau of Alcohol, Tobacco and Firearms expressed its own view of the Tenth Amendment this week when it issued an open letter to ‘all Tennessee Federal Firearms Licensees’ in which it denounced the opinion of Beavers and the Tennessee legislature.  ATF assistant director Carson W. Carroll wrote that ‘Federal law supersedes the Act’, and thus the ATF considers it meaningless.

Constitutional historian Kevin R.C. Gutzman sees this as something far removed from the founders’ vision of constitutional government:

“Their view is that the states exist for the administrative convenience of the Federal Government, and so of course any conflict between state and federal policy must be resolved in favor of the latter.”

“This is another way of saying that the Tenth Amendment is not binding on the Federal Government. Of course, that amounts to saying that federal officials have decided to ignore the Constitution when it doesn’t suit them.”

Advocates of these efforts say it doesn’t matter if the federal government disagrees, or even threatens states over funding, as they did recently with Oklahoma.  Gary Marbut, author of the Montana Firearms Freedom Act, and founder of http://www.firearmsfreedomact.com/ took this position in a recent interview with the Tenth Amendment Center:

“We’re not depending on permission from federal judges to be able to effectuate our state-made guns bills.  And, we’re working on other strategies to wrest essential and effective power from the federal government and put it where it belongs.“

The principle behind such legislation is nullification, which has a long history in the American tradition. When a state ‘nullifies’ a federal law, it is proclaiming that the law in question is void and inoperative, or ‘non-effective,’ within the boundaries of that state; or, in other words, not a law as far as the state is concerned.

All across the country, activists and state-legislators are pressing for similar legislation, to nullify specific federal laws within their states.

A proposed Constitutional Amendment to effectively ban national health care will go to a vote in Arizona in 2010.  Thirteen states now have some form of medical marijuana laws – in direct contravention to federal laws which state that the plant is illegal in all circumstances.  And, massive state nullification of the 2005 Real ID Act has rendered the law void.

While many advocates concede that a federal court battle has a slim chance of success, they point to the successful nullification of the Real ID Act as a blueprint to resist various federal laws that they see as outside the scope of the Constitution.

Some say that each successful state-level resistance to federal programs will only embolden others to try the same – resulting in an eventual shift of power from the federal government to the States and the People themselves.

Copyright © 2009 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.