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.

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

This, in conjunction with the 10th amendment’s mandate of limited government demonstrates that any suspension of Habeas Corpus outside the above provision is done so in violation of the Constitution. For clarification, here’s the text of the Tenth:

“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.”

Typical of those who wrote in opposition was this comment posted by someone under the name of “L. Savage”

you seem to forget that we are at war, we are not the ones that have chosen to hide among the civilian population and wage unchecked atrocities. you seem so concerned about the rights of terrorist who are trying to destroy the very democracy that you are trying to use to protect them and in the process you have decided that their rights as terrorist, not citizens of this country, is more important than bringing to justice those that helped topple the twin towers in n.y..

where is the cry of outrage from you for all the murdering and butchery that these people have committed, or is it not politicly aligned with your agenda to bad mouth the present administration no matter what they do? god help us all if you had been around during the second world war we’d all be speaking german or japanese now!

Here’s a textbook example of how the enemies of freedom try to whip us into supporting an expansion of power and the elimination of rights. It’s obviously not well-founded, but still worth a quick look.

1. you seem to forget that we are at war

How that can be forgotten by anyone is absurd! But, as made quite clear above, the Constitution doesn’t make any additional exceptions for being “at war.” The only times the federal government is allowed to suspended habeas corpus is in cases of Rebellion or Invasion – with the additional caveat that the “public safety may require it.”

2. we are not the ones that have chosen to hide among the civilian population and wage unchecked atrocities

If anyone made the claim that you. did these things, you would need the right to defend yourself and maintain your innocence.

3. you seem so concerned about the rights of terrorist who are trying to destroy the very democracy that you are trying to use to protect them

The concern is for the liberty of all. It must be stressed, until due process has been served, we do not know that these detainees have done anything you or anyone else has accused them of doing.

4. and in the process you have decided that their rights as terrorist, not citizens of this country, is more important than bringing to justice those that helped topple the twin towers in n.y.

All people have the same rights – as people. Again, you’ve convicted them of being a “terrorist” and of “toppling the twin towers.” If they’re guilty, it’ll be easy to convict them of these crimes.

It’s more likely that the government can’t prove their guilt, and that’s why they refuse to bring trial, or even charges for that matter.

5. where is the cry of outrage from you for all the murdering and butchery that these people have committed

There is a cry to catch, try, and prosecute these criminals. But the politicians running this government have no interest in this whatsoever. They just want to wage war in Iraq, kill civilians in Afghanistan, and where does that get us? Nowhere – A majority of those responsible for the horrible September attacks continue to run free.

6. god help us all if you had been around during the second world war we’d all be speaking german or japanese now!

It’s hard to believe that people still parrot this nonsense. The Japanese were able to pull off a “surprise” attack (although that’s debatable), and no one could seriously think that they had the ability to conquer and control America, an armed nation in the hundreds of millions of people. The Germans, on the other hand, couldn’t even cross the English Channel to invade England, let alone cross the Atlantic ocean to invade the United States!

Another common argument in support of expansive government powers in regards to habeas corpus is that the Constitution and the US government only have jurisdiction within U.S. borders, like this comment:

The author’s argument is fundamentally flawed and here’s why. The US Constitution frames the authority of the federal government – that’s a given. The US Government does not have global jurisdiction thus foreign combatants detained outside the jurisdictional boundaries of the United States and HELD outside the United States are not covered or entitled to rights or protections of the US Constitution. There is NO jurisdictional authority for the US to grant habeas corpus.

While it’s correct that the US Government doesn’t have global jurisdiction it often acts that way. People are held outside of US jurisdiction, and the claim is that outside of it, the government doesn’t need to follow the Constitution. But – while claiming exemption from the law due to lack of jurisdiction, the government still exercises jurisdictional authority by imprisoning these people in the first place.

In short, the government exercises jurisdictional power while, at the same time, claiming an exemption due to lack of jurisdiction.  As always, wanting it both ways.
More importantly, though, the Constitution doesn’t mention any location or jurisdiction. It doesn’t apply to foreigners. In fact, it doesn’t apply to people at all!

It applies to the Federal Government – only.

The Constitution lists what the government can do, while the Bill of Rights lists what it cannot do. Nowhere are there exceptions for where/what location the US government comes into contact with people.

The principle here is simple – all people are created equal and that “they are endowed by their Creator with certain unalienable rights…” Going further, it is the purpose of the Constitution to “secure these rights.” How? By limiting the power of the Federal Government to violate them.

In short, it doesn’t matter if the US is at war. It doesn’t matter if the politicians tell us someone is a terrorist. It doesn’t matter if atrocities have been committed, or if a person is being held “outside” jurisdiction.

Habeas Corpus cannot be suspended – except in cases of “rebellion or invasion.”

Period.