The following article is based off a speech given on 09-25-10 at the 25th Annual Gun Rights Policy Conference in San Francisco, CA.
Michael will be a featured speaker at Nullify Now! in Orlando on 10-10-10 and Chattanooga on 10-23-10. Get tickets here – http://www.nullifynow.com/tickets/ – or by calling 888-71-TICKETS

I’ve often been told that when you’re giving a speech – if all you get is applause and cheers – and you never piss anyone off – you’re no better than a low-life politician, because you’re not challenging anyone’s conventional mode of thought. Hopefully, I get at least a few eyebrows raised here in my 8-9 short minutes….

So let’s start out with the easy stuff, ok? I’m a tenther. That means I believe that the federal government should exercise only those powers that we the people delegated to it in the constitution – and nothing more. For example, no Obamacare mandates, no bank bailouts, and definitely no federal gun laws – period.

Question. How many people here own a gun, or manufacture or sell guns?

And how many of you are proud felons – meaning, when the government makes rules to restrict your right to keep and bear arms, you simply ignore them because they don’t have the authority to do so?

HEMPCON

I recently went to an event called Hemp Con down in my part of the state – Los Angeles. This is a big event at the LA convention center – with loads of vendors and businesses from every angle you can think of in support of the marijuana industry. There were home security companies to help protect your weed, solar power companies to help you grow your weed, doctors giving out medical marijuana cards to virtually anyone with $80 and an hour of time. There were even delivery services – you can get your marijuana delivered to you 24 hours a day…in 30 minutes or less. The pizza companies have nothing on these guys! It was amazing if you think about it from an economic standpoint – this was capitalism, the free market – working its wonders around an industry.

What’s the point?

Virtually EVERY single one of those businesses was either directly violating federal law, or aiding someone else in doing so because marijuana is illegal, according to the feds – but not the constitution – in all situations. In 2003, Tommy Chong was arrested for merely selling pieces of glass – pipes that could be used to smoke marijuana. And today, 7 years later, we’ve got what seemed to be the WalMart of weed in Downtown Los Angeles. And guess what – no ATF or DEA thugs shut the place down. Business functioned, people did what they wanted to in freedom, and that was that.

FREEDOM TO TRAVEL

Another quick story.

In 2005, the Bush administration got the REAL ID act passed, which was – in the eyes of many – a new form of a national id card. We were warned that if this act wasn’t followed, people wouldn’t be able to travel, enter federal buildings, get on planes, and the like.

Much of my girlfriend’s family lives in Missouri, a state that’s not in compliance with the Real ID act. Her relatives do a little traveling from time to time. They get on airplanes and show their non-compliant Missouri driver’s license. No federal agents stop them and prevent them from boarding a plane.

Well, most state DL’s – including those in Missouri – don’t comply with the Real ID Act. That law is still on the books in DC – it’s never been repealed. It’s never been challenged in court either. But – due to 25 states refusing to comply with the “law” – in much of the country that Real ID act is virtually null and void.

Here in California- the state always seems to be on its knees, begging the feds for something. Well, except on marijuana. In 2005, the Supreme Court ruled that state medical marijuana laws were illegal. At that time there were 10 states that had such laws. Do you know how many were repealed? Zero. And today, there’s 14 states defying Washington dc, and getting away with it.

Today, we see the Firearms Freedom Act movement growing along these lines – it’s already passed in 8 states. Following that lead, 5 states have passed laws saying no to Obamacare mandates too.

THE LESSON

What’s the lesson? This is the blueprint – when enough people say no to unconstitutional laws, regulations….and mandates….and enough states pass laws to back those people up – there’s not much the federal government can do, but slowly and consistently back off. There’s no tanks rolling into Los Angeles to shut down the dispensaries, and there’s no jack-booted thugs forcing people to get new driver’s licenses in Missouri. This is far from perfect, but it can work, and it is working right now.

So here’s the final question – and the big challenge to you today.

The next time you begrudgingly follow some federal “law” that restricts your right to keep and bear arms – or the next time you hear about a gun rights case that will be decided in 2, or 4, or 6 years – with the hope that some judge will give you permission to exercise your rights, ask yourself this question:

Do you….gun rights activists….have as much courage as the pot smokers?

For the sake of liberty – I hope you do – because I believe that we the people need to exercise our rights whether they the government wants to give us “permission” to or not!

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

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.

My home state of California usually interacts with the federal government by genuflecting.  But, on a few issues – very few, that is – they’ve got plenty of backbone.

Most notably, marijuana.

Last week, the California State Senate passed Senate Joint Resolution 14 (SJR14), calling on the federal government to end their “interference in state medical marijuana laws.”  If passed by the Assembly, it will be sent on to Congress and the White House as an official position of the California legislature.

THE INTERSTATE COMMERCE CLAUSE

Under the Constitution of the United States, the federal government is authorized to exercise only those powers which have been delegated to it by the People.   This is affirmed by the ratification of the 10th Amendment, which states, ”The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The federal government has often taken the position that it can still wage its “war on marijuana” under the “Interstate Commerce Clause” in Article I, Section 8 of the Constitution.  But, some experts see this kind of explanation as quite a stretch.

Most importantly, the Interstate Commerce Clause, as understood by the founders, was meant to empower the federal government to regulate trade among the states.  One of the chief concerns this addressed was preventing States from imposing restrictive taxes on goods coming from other states.

The Founders, however, made it quite clear that this would not authorize the government to take over fields like agriculture.  Clearly, this hasn’t stopped today’s politicians and judges from turning that original meaning nearly upside down.

FIREARMS TOO

While the stand off on state marijuana laws has been going on for over a decade, firearms is a new front in the Commerce Clause debate.

This year, both Montana and Tennesse passed a “Firearms Freedom Act” taking the position that guns manufactured in state, sold in state, and kept in state – would not be subject to federal laws and regulations under the Commerce Clause.

So far, the only response has been a sternly-written letter from the assistant director of the ATF stating his position that federal law supercedes state law – and the federal government intends to continue its current regulations.

A coalition of the Montana Sports Shooting Association and the 2nd Amendment Foundation is planning a court challenge “to the federal government’s insistence it will regulate those items.”

LEAVE IT TO THE STATES

According to Paul Armentano, deputy director of the National Organization for the Reform of Marijuana Laws (NORML), this is an issue that should be left up to the states.  He said, “The federal raids on medicinal marijuana providers have dissipated since Eric Holder was sworn in.  That said, the DEA has continued to be involved in a handful of raids in California — each time in cases that appeared to have been solely state matters (e.g., providers were alleged to be involved in state tax disputes or in violation of local ordinances), particularly based on the fact that federal charges were never filed.  If the Obama administration is really serious about leaving this issue solely up to state governments — as it should be — then the federal DEA ought to be leaving the voters of the thirteen states that have enacted medical marijuana policies alone.”

PROMISES MADE, PROMISES BROKEN?

As more states have passed medical marijuana laws, it’s become increasingly difficult and costly for the federal government to enforce its laws.  The Obama Administration has promised to end interference in state medical marijuana programs, but numerous federal raids since January have California lawmakers concerned.

SJR14 Sponsor Senator Mark Leno said that, “Patients and providers in California remain at risk of arrest and prosecution by federal law enforcement and legally established medical marijuana cooperatives continue to be the subjects of federal raids.”

In August, for example, federal agents conducted multiple raids on medical marijuana providers. On August 12, the Drug Enforcement Administration (DEA), Federal Bureau of Investigation (FBI), Internal Revenue Service, and local police carried out a paramilitary-style raid on a medical marijuana provider in Los Angeles.

The reason given?  The government claimed that the raided facility had “failed to submit state sales tax revenues.”

Where the Constitution permits federal agencies to enforce state tax code violations, I’ll never know.

A CONSTITUTIONAL REPUBLIC?

Supporters say that the reduction of raids under the Obama administration is a good thing.  But, according to noted Constitutional historian Kevin Gutzman, leaving the fate of such issues to the decision of one sitting president or another is a dangerous precedent.

“Attorney General Holder’s decision to halt the long-standing federal policy of prosecuting medical marijuana distributors is a welcome development,” said Gutzman. “However, so long as the Federal Government does not recognize the states’ Tenth Amendment right to decide the issue of medical marijuana, a return of the bad old days when patients suffering crippling pain were denied this medical treatment is always one election away.”

In other words, any society that rests the fate of its liberty on the “goodness” or “badness” of its leaders is in serious trouble.

“That,” said Gutzman, “is the difference between a democracy and a constitutional republic.”

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

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On its way to the Governor’s desk, the bill states that “federal laws and regulations do not apply to personal firearms, firearm accessories, or ammunition that is manufactured in Tennessee and remains in Tennessee. 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.”

The bill also states that “firearms accessories imported into Tennessee that are subject to federal regulation do not subject a firearm to federal regulation under interstate commerce simply because they are attached to or used in conjunction with a firearm in Tennessee.”

“Be it the federal government mandating changes in order for states to receive federal funds or the federal government telling us how to regulate commerce contained completely within this state – enough is enough,” urged Judiciary Chairman 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.”

Read the Full Text of the Bill Below:

AN ACT to amend Tennessee Code Annotated, Title 4, relative to exempting from regulation under the commerce clause of the Constitution of the United States a firearm, firearm accessory, or ammunition manufactured and retained in Tennessee.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE:

SECTION 1. Tennessee Code Annotated, Title 4, is amended by adding Sections 2 through 7 of this act as a new chapter thereto.

SECTION 2. This chapter shall be known and may be cited as the “Tennessee Firearms Freedom Act”.

SECTION 3. The general assembly declares that the authority for this act is the following:

(1) The tenth amendment to the United States Constitution 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 Tennessee certain powers as they were understood at the time that Tennessee was admitted to statehood. The guarantee of those powers is a matter of contract between the state and people of Tennessee and the United States as of the time that the compact with the United States was agreed upon and adopted by Tennessee and the United States;

(2) The ninth amendment to the United States Constitution guarantees to the people rights not granted in the Constitution and reserves to the people of Tennessee certain rights as they were understood at the time that Tennessee was admitted to statehood. The guarantee of those rights is a matter of contract between the state and people of Tennessee and the United States as of the time that the compact with the United States was agreed upon and adopted by Tennessee and the United States.

(3) 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. Congress has not expressly preempted state regulation of intrastate commerce pertaining to the manufacture on an intrastate basis of firearms, firearms accessories, and ammunition;

(4) The second amendment to the United States Constitution reserves to the people the right to keep and bear arms as that right was understood at the time that Tennessee was admitted to statehood, and the guarantee of the right is a matter of contract between the state and people of Tennessee and the United States as of the time that the compact with the United States was agreed upon and adopted by Tennessee and the United States; and

(5) The Tennessee Constitution clearly secures to Tennessee citizens, and prohibits government interference with, the right of individual Tennessee citizens to keep and bear arms.

SECTION 4. As used in this chapter, unless the context otherwise requires:

(1) “Firearms accessories” means items that are used in conjunction with or mounted upon a firearm but are not essential to the basic function of a firearm, including but not limited to telescopic or laser sights, magazines, flash or sound suppressors, folding or aftermarket stocks and grips, speedloaders, ammunition carriers, and lights for target illumination;

(2) “Generic and insignificant parts” includes but is not limited to springs, screws, nuts, and pins; and

(3) “Manufactured” means creating a firearm, a firearm accessory, or ammunition from basic materials for functional usefulness, including but not limited to forging, casting, machining, or other processes for working materials.

SECTION 5. A personal firearm, a firearm accessory, or ammunition that is manufactured commercially or privately in Tennessee and that remains within the borders of Tennessee is not subject to federal law 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. This section applies to a firearm, a firearm accessory, or ammunition that is manufactured in Tennessee from basic materials and that can be manufactured without the inclusion of any significant parts imported into this state. Generic and insignificant parts that have other manufacturing or consumer product applications are not firearms, firearms accessories, or ammunition, and their importation into Tennessee and incorporation into a firearm, a firearm accessory, or ammunition manufactured in Tennessee does not subject the firearm, firearm accessory, or ammunition to federal regulation. It is declared by the legislature that basic materials, such as unmachined steel and unshaped wood, are not firearms, firearms accessories, or ammunition and are not subject to congressional authority to regulate firearms, firearms accessories, and ammunition under interstate commerce as if they were actually firearms, firearms accessories, or ammunition. The authority of congress to regulate interstate commerce in basic materials does not include authority to regulate firearms, firearms accessories, and ammunition made in Tennessee from those materials. Firearms accessories that are imported into Tennessee 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 Tennessee.

SECTION 6. Section 5 of this act shall not apply to:

(1) A firearm that cannot be carried and used by one (1) person;

(2) A firearm that has a bore diameter greater than one and one half (1 ½) inches and that uses smokeless powder, not black powder, as a propellant;

(3) Ammunition with a projectile that explodes using an explosion of chemical energy after the projectile leaves the firearm; or

(4) A firearm that discharges two or more projectiles with one activation of the trigger or other firing device.

SECTION 7. A firearm manufactured or sold in Tennessee under this chpater must have the words “Made in Tennessee” clearly stamped on a central metallic part, such as the receiver or frame.

SECTION 8. This act shall take effect upon becoming a law, the public welfare requiring it.