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CowTowner
May 7, 2009, 08:20 AM
OK, I hope this doesn't come off as a drive-by.
But the article linked to below, discusses a proposed Texas law taking "sovereignty" to a level I'm not sure would pass any federal legal challenge.
Can the State of Texas really enact legislation that permits the manufacture, distribution and sale of firearms, ammunition and parts without the feds being involved in any way? Even if these activities are only for intrastate commerce?

Here's the news story:
http://www.star-telegram.com/legislature/story/1355073.html

I'm not a lawyer or even a highly educated man. But this doesn't seem to pass any smell test I can come up with.
Any help in understanding this is greatly appreciated.

hoytinak
May 7, 2009, 08:24 AM
There's a couple of other state's (Montana, Alaska IIRC) that are trying it too.

I like it.....but the problem is this, it'll end up like California and their "legal pot" system. California says you can get a cannabis card and go to their distribution center (regulated by the county), pick up some pot, go home and smoke it. Federal law says this is a big no no. So now, these people who are "legally" smoking pot get picked up and arrested by DEA under Federal drug laws. The feds will enforce the laws of the federal government regardless of what the state says is ok.

Dragon55
May 7, 2009, 08:51 AM
I believe we've already slid too far into the hole of an all controlling centralized government. A majority of the VOTING public recently decided they want a federal government that controls virtually every aspect of our lives. I often wonder why we even still have state borders when you consider that the feds trump state law in virtually every situation that matters.
Also, as hoytinak pointed out it's just too easy for the feds to roll in and enforce their law thumbing their noses at state law.
The libertarian in me really hope that Texas could make a case for manufacture of firearms in state work but the realist in me knows it will only be a noise muffled out by the din of the Orwellian centralized government.

Coomba
May 7, 2009, 08:53 AM
Good analogy. The pot clinics used to get raided now and again, I'm not sure how frequently. The current administration has said that would stop and I haven't seena ny headlines otherwise. I'm sure they would love to raid some "outside the federal law gun stores/manufacturers/etc" now and again.

vranasaurus
May 7, 2009, 09:02 AM
As mentioned above it will pretty much end up like the california pot scheme.

Where the DEA goes in and raids distributors and growers because they are violating federal law.

The thing I remember about Montana's statue is that it requires the state AG to go into federal court and seek a declaratory judgement regarding this statute. That way no one has to get arrested by the ATF in order to test the law. But as said above no judge is going to let this stand.

Brian Pfleuger
May 7, 2009, 10:14 AM
It is absolutely legal.

Whether or not the Feds allow it and what the states choose to do about the Feds trampling their rights is the real question. I hope it's the beginning of a new movement to restore our system to what it was supposed to be.

At least that way we can have the excrement piled on us by the state government instead of the feds.:rolleyes:

csmsss
May 7, 2009, 10:19 AM
I'm proud to live in a state like Texas that still holds dear essential concepts like states sovereignty and limited central government.

pendennis
May 7, 2009, 10:25 AM
A lot of the Federal government's power comes from a liberally-interpreted commerce clause in the Constitution. Courts have consistently ruled in favor of the broad powers of Congress.

There are several "ifs" in play here.


If all the component parts are made in Texas -
If the manufacture, sale, and delivery are all made in Texas -
If FFL dealers don't ship and sell the guns out of state -

- then it may be able to be pulled off.

But then, if BATFE would sue in Federal court, would the state of Texas be able to bear the cost of a lengthy court fight?

Texas has the Tenth Amendment on its side - "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."

carguychris
May 7, 2009, 10:41 AM
I'm proud to live in a state like Texas that still holds dear essential concepts like states sovereignty and limited central government.
OTOH it's hard to say how likely it is that this proposal will make its way into law, thanks to our somewhat dysfunctional state legislative system. I'm not sure if Rep. Berman holds any committee positions that would help move this idea along.*

It's also hard to say whether TX is anxious to pick a fight with the Feds. For better or for worse, this isn't MT. :rolleyes:

*For the benefit of non-Texans, the TX legislature only holds a regular legislative session once every other year, and the session is very short, so it tends to become a mad dash to pass piles of legislation in a very short time. Hence, only 2 categories of legislation are guaranteed to pass: (1) vital legislation that affects an issue that is threatening to become a crisis, or (2) pet bills of the higher-ups in powerful committees that determine which bills will get a floor vote. (In fact, #1 sometimes gets passed over in favor of #2.) This system concentrates so much power in the hands of the committee chairs and Speaker of the House that it's often nearly impossible for an individual legislator who holds no influential committee positions to get a bill passed. Don't get me started. Wait, I already started. ;)

publius42
May 7, 2009, 10:56 AM
* If all the component parts are made in Texas -
* If the manufacture, sale, and delivery are all made in Texas -
* If FFL dealers don't ship and sell the guns out of state -


None of those things really matter in terms of commerce clause legal reasoning. Look at the Raich case. Locally cultivated and used cannabis that was never sold is subject to federal regulation because Congress might rationally conclude that allowing medical users under state supervision would allow cannabis to "leak" into the illegal market. As Kozinsky wrote in the (remanded) Stewart decision:

Wickard v. Filburn and the later
cases endorsing its reasoning foreclose” “the claim that a
locally cultivated product that is used domestically rather than
sold on the open market is not subject to federal regulation.”
Id. at 2215.

csmsss
May 7, 2009, 11:05 AM
OTOH it's hard to say how likely it is that this proposal will make its way into law, thanks to our somewhat dysfunctional state legislative system. I'm not sure if Rep. Berman holds any committee positions that would help move this idea along.*

It's also hard to say whether TX is anxious to pick a fight with the Feds. For better or for worse, this isn't MT.

Well, I wouldn't be so certain that TX isn't willing to stand its ground in this fight:

http://www.youtube.com/watch?v=KTWKp_ucGLM
http://www.youtube.com/watch?v=0LHrIxc-QyE

csmsss
May 7, 2009, 11:08 AM
None of those things really matter in terms of commerce clause legal reasoning. Look at the Raich case. Locally cultivated and used cannabis that was never sold is subject to federal regulation because Congress might rationally conclude that allowing medical users under state supervision would allow cannabis to "leak" into the illegal market. As Kozinsky wrote in the (remanded) Stewart decision:I guess one could argue whether that is "reasoning" or "rationalization" of a pre-existing, intransigent prejudice toward federalization.

If one extends the argument to its logical extreme, it gives Congress the authority to regulate ANYTHING because virtually anything can presumably find its way across state lines. It certainly assumes an extraordinarily expansive - nay - preposterous definition of what constitutes interstate commerce.

maestro pistolero
May 7, 2009, 11:11 AM
The DEA raids on Medical Marijuana houses are a pathetic misappropriation of government resources. Those few minutes of screaming and AR15-pointing pose more of a hazard to those people than a lifetime of pot smoking. Government absurdity at it's finest.

It's prohibition, one mo' time, and the Cartels just keep getting bigger, stronger, and more dangerous.

pendennis
May 7, 2009, 11:20 AM
The commerce clause is regulatory between the states, not "intra-state". Cannabis/Marijuana is a controlled substance, and the states' claims to regulate may very well end up in the Supreme Court.

However, the comparison of manufactured products (gun or otherwise) to marijuana is an apples and oranges comparison.

Unless a company engages in interstate commerce, the Feds have historically been kept out of intrastate business. Corporation laws are primarily state functions. There are only a few Federally-chartered corporations (Boy Scouts of America, Federal Reserve Banks). Banking laws are the same. State chartered banks are not subject to Federal banking laws.

doobie
May 7, 2009, 11:25 AM
I'd say it could go the otherway for some states, "Well if the state has the right to decide that, we're going to decide to disarm our flock of sheep for their safety" It'll end up in SCOTUS. Question is....which way will it be leaning by then.

csmsss
May 7, 2009, 11:32 AM
I'd say it could go the otherway for some states, "Well if the state has the right to decide that, we're going to decide to disarm our flock of sheep for their safety" It'll end up in SCOTUS. Question is....which way will it be leaning by then.This was actually the Founders' intent - a federal government of narrowly defined authority, with the states sovereign and empowered to regulate and restrict activities within their borders as they saw fit.

armsmaster270
May 7, 2009, 11:36 AM
The only thing is the fat cats forgot all the foundations of the country.

csmsss
May 7, 2009, 11:41 AM
The only thing is the fat cats forgot all the foundations of the country.That's because we, as a citizenry, became seduced by promises of free money and rights without obligations.

Housezealot
May 7, 2009, 12:46 PM
Just another good reason I should move to texas!

Bartholomew Roberts
May 7, 2009, 02:13 PM
The thing is that the Montana, Texas and other laws directly challenge the Federal government on the issue of interstate commerce; because despite limiting the situation to intrastate commerce, these laws directly challenge the Supreme Court rulings in Raich, Stewart and Wickard.

Looking at the voting breakdown for Raich, Kennedy went with the majority and Scalia wrote a concurrence that gave even broader authority over intrastate commerce that affects interstate commerce than the majority result. The dissenting votes were O'Connor (gone), Rehnquist (gone) and Thomas.

Realistically, I would love to see the states assert more of their rights; but they will absolutely lose this one in the current Court.

madmo44mag
May 7, 2009, 03:29 PM
Lose, win or draw the point is some states are ready to challenge the fed and fight for their rights under the constitution.
The more press these issues get the more informed the sheep become and maybe, just maybe a few of them will wake up to realize the fed has over stepped their bounds.
IMO as long as your optimistic and keep fighting regardless of how many times you get knock down, you have a chance.
It's when you give up and stop being optimistic and stop taking the fight to them, you might as well turn your guns in and crawl over in the pen with the sheep.

Can I get an Amen?????????:D

publius42
May 7, 2009, 03:33 PM
If one extends the argument to its logical extreme, it gives Congress the authority to regulate ANYTHING because virtually anything can presumably find its way across state lines.

That's almost exactly what Clarence Thomas said in his dissent in the Raich case. Notice he said it in a dissent.

The commerce clause is regulatory between the states, not "intra-state". Cannabis/Marijuana is a controlled substance, and the states' claims to regulate may very well end up in the Supreme Court.

However, the comparison of manufactured products (gun or otherwise) to marijuana is an apples and oranges comparison.

I wish you were right, but you just need to catch up on some recent case law. As Kozinski said when the Supreme Court made him rewrite the Stewart decision:

when Congress makes an interstate omelet, it is enti-
tled to break a few intrastate eggs.

That's the state of the law. If your activity is so miniscule in scale that it could not possibly affect interstate commerce, that doesn't matter because the combined effects of many, many people just like you could affect interstate commerce. Similar logic applies to activities that are confined to one state: if they can, in the aggregate, affect other states, they can become a federal matter.

As for marijuana precedents being of a different character from those on manufactured goods, again, you need to look at the recent cases. The Supreme Court ordered Stewart (homegrown machine guns) reversed and reconsidered in light of Raich (homegrown cannabis plants). You may see them as different, but the law does not.

Hkmp5sd
May 7, 2009, 03:41 PM
It is absolutely legal.

Whether or not the Feds allow it and what the states choose to do about the Feds trampling their rights is the real question.

It was tried once back in the 1860's. The federal government had no qualms about ingoring the constitution or states rights back then.

AZ Med18
May 7, 2009, 03:57 PM
In that controversial report that came out not to long ago from DHS. Wouldn't a state wanting a smaller centralized government be considered terrorist activities?

madmo44mag
May 7, 2009, 11:10 PM
In that controversial report that came out not to long ago from DHS. Wouldn't a state wanting a smaller centralized government be considered terrorist activities?
I'm ok with that.
Look everyone I am a patriot terrorist that believes in the founding fathers vision.
There was a small group of men that brought their families across the ocean in search of a better life and freedom.
This same small group of men defeated the worlds largest standing army of the time.
Freedom and liberty is paid for with the blood of tyrants and patriots.
It could be that there are patriots out there today willing to take that stand.
Look at the people on this forum. We all share some of the same basic beliefs and objection to today's political atmosphere.
Ask yourselves based on the political atmosphere of today; could I be a patriot terrorist by [redacted] and his gaggle of stogies ideologies?

Ok, rant over before I really tick some one off.

Dust Monkey
May 7, 2009, 11:33 PM
I like it. Makes me want to move back to Texas.


Remember the commerce clause gives congress the power to regulate. The intentions of the founders, IIRC, was to make sure that there was "regular" trade between the states. Not control how toilets work.

THE GENERAL
May 7, 2009, 11:40 PM
As a Virginian and a believer in states rights, I see not one problem with this! I don't trust the federal government to uphold the peoples rights. I am a firm believer in states rights and think we should leave it up to the people in those states.

BillCA
May 8, 2009, 12:34 AM
The problem with the commerce clause is that it can be construed to permit argument ad absurdum to control anything produced.

I had a most enlightening conversation one evening, over dinner, with a lawyer about this. He'd worked on a few cases involving the commerce clause.

In essence, Congress can justify anything it wants via the commerce clause if the courts do not limit the reach of their arguments.

In one case, the Feds argued for control based on the fact that one supplier of California lumber bought cut lumber from a California mill that purchases saws and machines from other states and uses electricity produced in other states.

If you break down anything far enough, it becomes something made in another state. Until the courts wake up and limit the reach of such arguments, the Feds can control just about any product made or method of transportation to get it to market.

Feds will argue that they can regulate your home-grown vegetable garden, even if you irrigate with stored rainwater, use garden tools made from trees on your own land and use locally produced seed stock. How? They'll argue that doing so reduces federal tax revenues by reducing your (and your neighbors') demand for the veggies and that reduces the amount of fuel taxes, income taxes for farm workers who buy other interstate products, etc. :barf:

The solution is easy and straightforward. Limit the arguments to a direct, measurable and substatantive affect on commerce. Plus removing the argument that a "local state product" will reduce demand for out-of-state products based simply on the principle that people are free to make their choices of which products to buy for any reason.

gc70
May 8, 2009, 04:35 AM
The state efforts are about sovereignty and the 10th Amendment versus the commerce clause. Guns just happen to be the vehicle for that fight. The same state efforts could target homemade jelly and jam rather than guns, but would get little publicity or legal reaction from the federal government. Guns are attention-getting, heavily regulated, and guarantee a legal reaction by the federal government

In essence, Congress can justify anything it wants via the commerce clause if the courts do not limit the reach of their arguments.

Absolutely correct. Most commerce clause cases deal with the production and sale (or lack thereof) of products and their impact on commerce. The Gun Free School Zone of 1996 (http://www.cs.cmu.edu/afs/cs/usr/wbardwel/public/nfalist/gun_free_school_zones.txt) took the commerce clause to a new level of tenuous connections to commerce.

(F) the occurrence of violent crime in school zones has resulted in a decline in the quality of education in our country;

(G) this decline in the quality of education has an adverse impact on interstate commerce and the foreign commerce of the United States;

The mere existence of a product (the manufacturing, sale, and ownership of which is already heavily regulated) contributes to an environment that impairs the quality of education, which impairs the country's economic productivity. Using that type of logic, the federal government could regulate entertainment activities (dumbing down the population), food (bad food = poor students), or essentially anything.

BlueTrain
May 8, 2009, 05:48 AM
You should remember that the Confederate States did not believe so much in a strong central government and that was one of their weaknesses and yet travel within the Confederacy was controlled. Supposedly you had to have a pass. The president of the Confederacy also had line item veto. His widow moved to New York after he died, too, but that probably doesn't enter into things.

publius42
May 8, 2009, 06:05 AM
The solution is easy and straightforward. Limit the arguments to a direct, measurable and substatantive affect on commerce.

That's true, and it will involve reversing the Wickard and Raich precedents, something none of us will live to see the Supreme Court do.

I remember following the oral arguments in the Raich case on the legal blog sites, and Scalia was reported to have kept hammering Raich's attorney on the same question: how is this different from the Wickard case? There really is no satisfactory answer, though there are some differences. The issues are fundamentally the same, and Scalia was not willing to overturn Wickard. Neither were O'Connor and Rhenquist, for that matter. Only Justice Thomas, dissenting alone (http://straylight.law.cornell.edu/supct/html/03-1454.ZD1.html), was willing to acknowledge what will be needed to limit the commerce power. He said:

If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison’s assurance to the people of New York that the “powers delegated” to the Federal Government are “few and defined,” while those of the States are “numerous and indefinite.” The Federalist No. 45, at 313 (J. Madison).

...

One searches the Court’s opinion in vain for any hint of what aspect of American life is reserved to the States. Yet this Court knows that “ ‘[t]he Constitution created a Federal Government of limited powers.’ ” New York v. United States, 505 U.S. 144, 155 (1992) (quoting Gregory v. Ashcroft, 501 U.S. 452, 457 (1991)). That is why today’s decision will add no measure of stability to our Commerce Clause jurisprudence: This Court is willing neither to enforce limits on federal power, nor to declare the Tenth Amendment a dead letter. If stability is possible, it is only by discarding the stand-alone substantial effects test and revisiting our definition of “Commerce among the several States.” Congress may regulate interstate commerce–not things that affect it, even when summed together, unless truly “necessary and proper” to regulating interstate commerce.

Wickard and Raich have got to go if we are to return to Madison's vision of the commerce power:

13 Feb. 1829
Letters 4:14--15 James Madison to Joseph C. Cabell


For a like reason, I made no reference to the "power to regulate commerce among the several States." I always foresaw that difficulties might be started in relation to that power which could not be fully explained without recurring to views of it, which, however just, might give birth to specious though unsound objections. Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it. Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged.

alloy
May 8, 2009, 06:18 AM
Something i found about the Montana situation. http://www.gather.com/viewArticle.jsp?articleId=281474977674743

carguychris
May 8, 2009, 09:51 AM
The solution is easy and straightforward. Limit the arguments to a direct, measurable and substatantive affect on commerce.
Easy and straightforward in theory, yes. In practice, no. Doing so would be going against court precedents and the general direction of regulation by Congress since at least the beginning of the 20th century, if not the Civil War.

IMHO the recent sovereignty declarations (or whatever you call them) by the states probably won't get very far as it relates to almost any substantive issue with a history of federal regulation. Most of the "state's rights" claims will probably be thrown out by the federal courts, because they've already been doing it for decades.
...it will involve reversing the Wickard and Raich precedents, something none of us will live to see the Supreme Court do.
It could be done with a constitutional amendment. It's a long shot, but IMHO it's the only surefire way to settle the issue.

USAFNoDak
May 8, 2009, 10:54 AM
I'm not a lawyer so I won't go too far here. However, I seem to recall that the USSC ruled in favor of the feds regarding someone growing wheat or some other ag product on their own property for sale within their own neighborhood, county or state. They tried to get around federal agriculture pricing rules since their product was not going to move in "interstate" commerce.

However, the feds argued, and the USSC agreed (again if my memory serves me correctly) that any agriculture product sold within a state would have an "impact" on the same agriculture product which moved in "interstate" commerce. Here was there reasoning. The people in a certain state would use or consume X amount of agriculture product Y moving in interstate commerce. If someone began to supply Z amount of that product for "intrastate" commerce, it would reduce the amount X of product Y moving into the state via "interstate" commerce. Thus, the feds had regulatory authority to set the price which product Y could be sold for, even if a part of product Y had never moved in "interstate" commerce.

How's that for stretching the Interstate Commerce Clause? I hope someone will reply here with the case I'm thinking of and I hope my memory is accurate on this. My apologies ahead of time if I'm not remembering this with 100% correctness.

Edited to clarify: The case was "Wickard vs. Filburn" and was about how much wheat could be grown on someone's private property. There was a limit set by the federal government to keep wheat prices stable. Do a search on "Wickard vs. Filburn" for the details. Filburn grew more than his limit, but argued that it was only for his own personal use. Since it was for his own personal use, he argued that the wheat allocation was not applicable to him as his wheat would not be moving in "interstate" commerce, and therefor he was outside of the federal regulations for how much wheat could be grown on his property. He lost due to the interstate commerce clause interpretation by the USSC.

USAFNoDak
May 8, 2009, 11:10 AM
Here is the finding in "Wickard vs. Filburn", summarized in Wikipedia. I know that Wikipedia is not always 100% accurate, but I believe it is regarding this case, based upon my memory other articles I've read regarding this case.

Filburn argued that since the excess wheat he produced was intended solely for home consumption it could not be regulated through the interstate Commerce Clause. The Supreme Court rejected this argument, reasoning that if Filburn had not used home-grown wheat he would have had to buy wheat on the open market. This effect on interstate commerce, the Court reasoned, may not be substantial from the actions of Filburn alone but through the cumulative actions of thousands of other farmers just like Filburn its effect would certainly become substantial. Therefore Congress could regulate wholly intrastate, non-commercial activity if such activity, viewed in the aggregate, would have a substantial effect on interstate commerce, even if the individual effects are trivial.


So, it seems to me that the federal government will argue the same thing, and use this case as precedent in their arguements, should states allow manufacture of firearms and ammunition within the state, and try to put such firearms outside of federal control.

I don't agree with the feds being able to control virtually anything with such twisted logic, so I would side with the states. I'm merely pointing out that something similar has already been tried and a ruling made against it.

Eghad
May 8, 2009, 12:35 PM
That decision is the one that the law is going after.... I know some folks in DC are probably sweating this to see how big it gets....

Back then you had the Depression and Roosvelt had been kicked down by the USSC on several other occasions so it wasnt a slam dunk. This USSC may be ready to give this case a whirl and go for the states rights.

I have seen Judge Napolitano on some shows and his opinion that it could be a 5 or even 6 majority.

In the medical marijuana case the liberals voted to uphold the federal preemption while the dissenters who leaned towards the conservative side towards the states rights. This court has already held that the SA is a individual right and a person has a right to defend themselves. So anything could happen on this one.

After a decision like that now is the time to strike while the fire is hot. I would assume that there are already folks waiting to purchase those first guns and lawyers ready to go after the Feds roll in and do their thing.

The $100,000 dollar question is are the Feds willing to gamble on losing a decision by the USSC? The more states that get on this train and the more confusing appelate court decisons there are the better the chance the USSC will have to hear it and will not be able to refuse it. Will they lose thier nerve and ignore it hoping for a big change in the USSC?

Heller was good but this could be the icing on the cake.

AZ Med18
May 8, 2009, 12:48 PM
So DHS would consider Texas, Montana, and all those states seeking sovereignty. Be a terrorist state?

Ah crap our own nation is going to start taking out STATES!!!

publius42
May 8, 2009, 01:03 PM
Wickard vs Filburn (http://straylight.law.cornell.edu/supct/html/historics/USSC_CR_0317_0111_ZO.html)

alloy
May 11, 2009, 05:47 AM
I believe Glenn Beck will be doing a segment on this and some of its implications on his Fox News show today around 5 EST for anyone with TIVO.

Glenn Beck....not exactly hard news, but it might be interesting.

Bartholomew Roberts
May 11, 2009, 07:27 AM
In the medical marijuana case the liberals voted to uphold the federal preemption while the dissenters who leaned towards the conservative side towards the states rights.

I don't know that I would characterize Scalia as liberal. ;)

TEDDY
May 11, 2009, 12:19 PM
there was an argument in federal court on interstate commerce about a gun which if it was not in interstate commerce would be exempt from the charge.
the darn gun had shipped to a dealer several states awy and then back to Mass.ug.it was a S&W.so if it stayed in mass it would have been legal.
all gun laws on fed level are based on the 1934 MG law taxing MG.the ATF enforces the tax laws.the 10% tax and the $200 tax.and the income tax on guns and ammo.:rolleyes:

Hellbilly5000
May 11, 2009, 12:56 PM
This is not the first and this won't be the last time the state of Texas tell the US Government to go screw itself. Remember Gov. Perry recently told President Obama that if any federal assault weapon bans are enacted then the state of Texas will simply ignore the law in accordance with the 10th amendment.