ATF says NO to state sovereignty

[NavyLT]

From a CBS News article on a recent spate of States rights legislation:

Gary Marbut, president of the Montana Shooting Sports Association, said in an interview with CBSNews.com on Monday that he expects to be facing off against the Obama administration in court soon. "We will find the right test cases to get us in court," he said.

Marbut believes that the letters were't that meaningful because they were addressed to gun manufacturers and dealers who already are licensed by the federal government. "Those people already are under the thumb of the Feds," he said. "We've assumed they wouldn't want to put their circumstances at risk in dabbling in the state-made guns business. The people who the letters are addressed to are pretty irrelevant to the whole discussion."

Translation: If you're a gunsmith talented enough to build a made-in-Montana gun under the state's forthcoming law, give Marbut a ring. Just don't be surprised if the Bureau of Alcohol, Tobacco, and Firearms, and Explosives is not entirely pleased.

Full text at the indicated link above.

Links to the letters the ATF has sent to Tennessee and Montana: http://www.atf.gov/firearms/071709-t...openletter.pdf and http://www.atf.gov/firearms/071709-m...openletter.pdf

The battle over the 10th Amendment is beginning.

[csmsss]

Well, of course they do. Then again, BATF isn't known for its rigid adherence to strict interpretation of constitutional restrictions on its authority. That said, these laws aren't about firearms at all - they're about states' rights and sovereignty, and the relationship and constitutional boundaries between the states and the federal government. At issue is whether the Tenth Amendment actually imposes any limitations upon the proscriptive authority of the federal government, or if it is basically elastic and can be interpreted and executed in any manner the feds choose. The latter standard has been in effect (read: settled law) for many decades now (see Gonzales v. Raich for the "state of the art" in elastic interpretation of the Tenth Amendment).

[johnwilliamson062]

didn't the Montana Gov ask for an immediate ruling on the bill so no one would have to go to trial over it? Anyone heard anything more about that?

[skeezix]

I would suggest the ATF learn how to use a tape measure first before it starts trying to interpret law.

[maestro pistolero]

Schumer says "the states have aright to make their own gun laws", but the ATF says "the states don't have a right to make their own gun laws?"

All Montana has to do is declare that they are arming their militia, and they can arm them nearly any way they see fit. Let the Feds try to interfere with that without running afoul of several constitutional amendments, starting with BOTH clauses of 2A.

[Tom Servo]

I'm not in the politician's heads, but I can speculate.

I don't think they want (or expect) an actual standoff or showdown between the ATF and local authorities. I think this whole thing is meant to open a large debate in the courts over the role and limits of the 10th Amendment.

At least I hope so. I don't want to see 20 versions of Ruby Ridge playing out simultaneously across the country.

Nor do I want to see a flood of decent, law-abiding folks going to Federal prison for doing something a local law states is legal. Some state versions of the FFA include a clause requiring that state's Attorney General to defend anyone arrested and tried under Federal regulations, but I don't know how much they'll really be able to do.

As far as the ATF notice, they should have directed it to the general public, not FFL's. An FFL needs to keep his license to stay in business, and people need his business to buy most firearms. As such, the FFL isn't going to deal in anything that might get that taken away.

So, you'll have two distinct species of dealers:

The first group will be FFL's, who abide by Federal regulation. They'll continue to sell all the guns we're used to seeing (which are not exempted by the state Acts).

The second group are the "local" dealers, who will handle the made-in-state stuff. They won't be eligible to get an FFL, but they'll have their own distinct market. They're the ones who will need to worry about the ATF.

The big problem will be when someone crosses that line. For example, a made-in-state dealer who accidentally mixes the wrong ratio of in-state and out-of-state parts, or whose wares end up crossing state lines. That, or an FFL sells a gun that has "Montana only " parts.

[johnwilliamson062]

I was sort of hoping the ATFE would adopt the stance of the DEA(under Obama) on California's dug laws. not expecting, but hoping. I agree you may very well end up with local and national dealers. That would work fine for me. One of the most important things you may see in that situation is that small arms research would start up again in earnest by small shops and such. I would love to see that happen.

[lockedcj7]

There are several states that have de-criminalized marijuana or have legislation allowing for medicinal use. It's still illegal under federal law and the DEA has jurisdiction. The DEA has tried to require the states to enforce federal law by threatening to have federal highway $$ withheld and other coercive methods. Obama has told the DEA to back off.

The TN law is no different. I highly (no pun intended) doubt that Obama will tell the BATFE to back off.

[NWPilgrim]

As I understand it the "interstate commerce clause" is being used to justify the ATF and most other 10th amendment infringements. Hopefully these state laws will finally challenge the commerce clause and establish some solid states rights.

Currently the interstate commerce is being defined as any activity that could "affect" interstate commerce, even if that activity is performed entirely within one state. That is way to broad and over reaching.

[skeezix]

"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."

I see no other way to interpret this other than it is written, and political hoop-la in courts amounts to nothing.

I do, on the other hand, see how things involving interstate commerce could come into play, but that isn't what this is all about.

The Constitution gives as one of the Powers of Congress - "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;" -- Among the several states yes, inside them no.

[trespass]

the majority of federal laws, and particularly criminal and prohibitory provisions arised uner either the interstate commerce caluse or the
taxing power for their authority. It appears Tennessee is attempting to make
a law completely intrastate. Note the limitation on in state in the act.
This might actuyally work if the ATF provisions applicable rely upon the commerce clause for their application. Justice Thomas in an opinion a few years ago concerning a federal law and guns in school areas found the law had no connection to interstate commerce and struck it down. of course, the legal attle has only begun. yet, the state provision may be on some solid legal ground to make the fight, but its application will depend on its completely intrastate character.

[OuTcAsT]

An FFL needs to keep his license to stay in business, and people need his business to buy most firearms. As such, the FFL isn't going to deal in anything that might get that taken away.

And thus why this letter was directed at them. Some folk cling dearly to the coin purse.

However;

people need his business to buy most firearms.

Not necessarily true. Most firearms are available FTF if one shops around, and if the firearms are made, and sold, and owned in TN the BATFE can pound sand.

I don't want to see 20 versions of Ruby Ridge playing out simultaneously across the country.

It won't play well in TN, but if that's where we are headed, bring it. I, for one, am ready to see this continuing abuse of the COTUS addressed....one way or t'other.
I hope it can be resolved in the Judiciary but, the signs point otherwise, either way, I ain't askeerd. (NOTE: If Ruby Ridge had been manned by true "hillbillies" the outcome would have been much different.

*dons fire retardant BOHICA flame suit as someone try's to play the "civil war" card*

[Ricky B]

ATF says NO to state sovereignty

Hmm, well so does the U.S. Constitution. The supremacy clause in the constitution says that in any conflict between state law and federal law, federal law wins.

So the next question is whether federal law purports to regulate entirely in-state firearms transactions. I haven't checked this out so I am going to assume that it does. (If anyone has a cite to a statute or regulation that indicates otherwise, please post.)

Which brings us to the Interstate Commerce clause, the source of much of Congress's power. In the case of Wickard v. Fillburn, the U.S. Supreme Court ruled that Congress could regulate the growing of wheat for home consumption. The rationale of the decision is that the entirely intra-state act of growing and then consuming one's own wheat could affect interstate commerce and therefore Congress could regulate it.

Here's a link to the discussion in Wikipedia for those not familiar with the case:

http://en.wikipedia.org/wiki/Wickard_v._Filburn

Wrongly decided? Maybe, but until the court overrules it, that's the law of the land.

This really isn't a 10A question. Congress indisputably has control over interstate commerce, and until the Supreme Court backs off from Wickard v. Filburn, Congress has control over commerce entirely within a state.

U.S. v. Lopez (invalidating gun-free school zones) did mark a check on Congress's power under the Commerce Clause, but so far that is just a tiny chink in the armor (and does not undercut the rationale of Wickard v. Filburn).

Ten years after Lopez was decided, the Supreme Court (in 2005) decided Gonzales v. Raich, upholding the power of the federal government to prosecute individuals who grow their own medicinal marijuana pursuant to state law (and thus following Wickard v. Filburn). Even Scalia concurred, saying:

Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective.

Since Congress has clearly sought to regulate the interstate market for firerarms, even Scalia would say it has power to take measures necessary to make the interstate regulation effective. And most of the justices are more liberal than Scalia.

As the law now stands, the ATF is entirely correct in its position, and it provided a public service with its letter by keeping FFL's from being confused by state laws that may play well politically but are invalid.

political hoop-la in courts amounts to nothing

Turn about is fair play. The courts say that hoopla on TFL amounts to nothing too.

[Tucker 1371]

Going by the Constitution the Federal Government obviously has no right to tell Motana what kinds of restrictions can be placed on something that never leaves the state. Congress has the authority to regulate interstate commerce, if it doesn't fall under that then it fall's under states' rights, plain and simple. Any action by the feds here will be a clear violation of the constitution.

[roy reali]

Before some of you so easily dismiss or or dilute the power of Congress look up and read Artilce 1, Section 8, Clause 18 of the US Constitution. This section is also known as the elastic clause.

[publius42]

U.S. v. Lopez (invalidating gun-free school zones) did mark a check on Congress's power under the Commerce Clause, but so far that is just a tiny chink in the armor (and does not undercut the rationale of Wickard v. Filburn).

I see this mistake frequently, and now and then try to correct it.

US v Lopez did NOT invalidate gun-free school zones.

Read the opinion. Pay particular attention to footnote 4.

What happened was, the Congress and President could see how things were going in the Lopez case, and could see that they were likely to lose. They were going to lose because the law, as written at the time, forced the Court to ASSUME that certain intrastate activities affect interstate commerce. Courts don't like to ASSUME stuff, and if you read the opinion you can see that the law AS WRITTEN AT THE TIME was overturned on this basis.

HOWEVER, while all that was going on at the Supreme Court, Congress got busy and passed, and President Clinton signed, a NEW, IMPROVED gun free school zones act, this time with specific findings by Congress that say having a gun near a school affects interstate commerce.

Rhenquist, in the majority opinion, thus had to add footnote 4, saying that they were overturning a PREVIOUS VERSION of the law. The CURRENT VERSION remained untouched, and you can read it here: 18 U.S.C. § 922 (q).

This is what the minority in the Raich case were referencing in saying:

If the Court is right, then Lopez stands for nothing more than a drafting guide

Congress can create its own power simply by pointing to something and saying it affects interstate commerce.

[skeezix]

Everyone seems confused between Congress (or courts) having the authority to do something and having the power to do something.

Congress has the authority to pass laws - not the authority to pass ones that violate the Constitution. But they have the power to do so because we let them by doing basically nothing, and coercion seems to work just as well in this country as in any other

Courts - do they have the authority to determine what is 'constitutional' or not? Certainly they have the power, and it is backed up with military/police might, just like Congress. The states ratified the Constitution - so who would really determine what meets their criteria other than the states?

Wrongly decided? Maybe, but until the court overrules it, that's the law of the land.

Basically, courts can just say "sorry but the right to bear arms only applied back when this country was founded, obviously you do not need it anymore so bye bye" and we have to obey it until this decision is overturned?

Originally Posted by The Constitution

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

This is not an elastic clause, merely a statement that Congress can pass laws to necessary for what? The foregoing (previously listed) Powers which are laid out, or any others that the Constitution specifically grants. The 10th Amendment also lays out that this authority stops at that point and that the rest is up to the States.

Does this stop courts or congress from making things up? No. And people just assume they have to obey such things because they obviously have the authority or they would not have made such law.

Courts also do not have the authority to make policy or law, but it still happens, and the same thing happens as above. People just go along with it as if it is ok.

Originally Posted by The Constitution

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Are all of these trials by jury, or just a bunch of political hoop-la in courts as I mentioned earlier, letting the Supreme Court basically make policy and law based on their whims and opinions at that particular moment? I certainly may be missing something, I am hardly a student of the law so if anyone can help point me in the right direction that will help :-)

Originally Posted by Ricky B

Hmm, well so does the U.S. Constitution. The supremacy clause in the constitution says that in any conflict between state law and federal law, federal law wins.

Indeed it does! And it applies if that federal law aligns with the Constitution - if it does not, then it falls under the 10th amendment, which gives the middle finger to the federal government and tells them to mind their own business.

This is like Congress passing a law that says the President can declare or make war - this is purely an illegal law which violates the Constitution, just passing a law doesn't mean he really can - yet we all just kind of assume it is ok. This power is given to Congress alone, not a single person, and just passing a law that says otherwise doesn't mean it is true.

This is also like how laws are passed to make it sound like the common laborer and employee must pay Federal Income Tax, which they don't. Obviously we aren't told this, nor are our petitions answered about this (which is our right in the 1st amendment), but that doesn't stop the IRS from ruining peoples lives in the process of enforcing this. The laws have been twisted so that if you give an identification number to your employer, such as SSN, you are 'volunteering' that income to be taxed. The IRC (Internal Revenue Code) also states that it is applicable to a tax payer. So, if you are not a tax payer, it does not apply. That is the real key, eh? There have been quite a few courts showing that the 'Income' when concerning taxes only applies to such like capital gains, profits, etc. It does not apply to the common laborer because you are only trading your time/work for an equal amount of property (cash) so there is not a profit, only an even trade.

[Al Norris]

Originally Posted by Ricky B

The rationale of the decision is that the entirely intra-state act of growing and then consuming one's own wheat could affect interstate commerce and therefore Congress could regulate it.

I disagree with that representation.

The majority argued that what Filburn produced was of no consequence. However if there were a hundred (or a thousand) Filburns, growing their own wheat, for their own consumption, then interstate commerce may be affected.

The Court ruled not on what was before them, but what might happen, should others follow Filburns lead. Hence the Court departed from its normal and ordinary duty to try cases that were before them, to argue a decision for future cases that may or may not come before them.

This was a tremendous departure from prior legislation by the Congress. Never before had agriculture come under the scope of any Federal power. What people raised on their farms was theirs. What they traded to other local people, ostensibly for other consumables they themselves did not produce, was regulated by the State (if regulated at all), as intrastate commerce.

Until such a time that local produce was introduced into an interstate market, there was no federal authority over them. That all changed with the decision in Wickard.

But even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as 'direct' or 'indirect.'

One might think that if the conduct does not exert a substantial economic affect, then Congress may not regulate the activity. One would be wrong.

In Raich, the Court said that any conduct by which, ‘the production, distribution, and consumption of commodities[,]’ is reachable by the Congress, simply by calling it interstate commerce. This greatly expands the powers of the Congress, which were expanded by Wickard and its progeny.

Remembering that in the original Gun Control Act of 1968, the Congress declared that any substance that once traveled in interstate commerce, was forever in interstate commerce (and which definition, the Court has agreed), we then have our basis of federal gun control.

Which is the basis for the ATF's recent letters.

Which is also the basis of the laws enacted in Montana and Tennessee. Here they declare that materials moving into the State, cease to be in commerce, if they never leave the State. The States go further, they claim that a bar of steel, changed in character, do not become "wards" of federal power, unless actually placed in interstate commerce.

That is the 10th amendment assertion.

[Fremmer]

Sounds to me like the issue is whether whatever they are producing in the State, and which remains in the State, substantially affects interstate commerce (allowing for regulation by congress), not a 10th Amendment issue. I'm confused?

[skeezix]

Originally Posted by antipitas

The majority argued that what Filburn produced was of no consequence. However if there were a hundred (or a thousand) Filburns, growing their own wheat, for their own consumption, then interstate commerce may be affected.

This is what I find amusing - isn't this how things STARTED in this country? Wasn't everyone pretty much independent? People have grown into what we have today, and having someone going back to the way things were does not matter. Even if it DID affect interstate commerce, it STILL isn't something the Federal government has any business in. I think you agree with me on this, Antipitas, just explaining my own thoughts here more.

Ohio does not export out of state large volumes of SKEEZIX-LASER-BEAMS. If it did, and it became a large business, then great! If Ohio then chose to no longer export those, of course it could affect interstate commerce. It would just be in the opposite direction it initially pushed. Other states can always build their own and keep them within their state too (or take over exporting in Ohios place) - or a competitor could do so - bottom line, it isn't the Feds problem, other than the problem that they don't control everything in this world with an iron fist. That's the real problem, isn't it?

[Ricky B]

US v Lopez did NOT invalidate gun-free school zones.

Correct. Because it was not germane to the point I was making, I was not as precise as I could have been, or as I have been in previous threads.

The statute as originally passed was invalidated. The current statute, as amended, has not yet been ruled on by SCOTUS. For more discussion, see my posts in:

http://www.thefiringline.com/forums/...d.php?t=357687

http://www.thefiringline.com/forums/...d.php?t=354040

Congress can create its own power simply by pointing to something and saying it affects interstate commerce.

I don't agree (and suspect SCOTUS doesn't either, at least in that formulation). That is the unanswered question resulting from the amendment of the statute that was the subject of the Lopez decision. I think that, given the history of that particular statute and the court's decision, the court will say no, Congress can NOT create its own power simply by pointing to something and saying it affects interstate commerce. But, in the context of other statutes, I am not so confident. Therefore, it would matter which case gets to the SCOTUS first.

Antipitas, I think that the words "could affect" convey what you say but appreciate the clarification.

the basis of the laws enacted in Montana and Tennessee. Here they declare that materials moving into the State, cease to be in commerce, if they never leave the State. The States go further, they claim that a bar of steel, changed in character, do not become "wards" of federal power, unless actually placed in interstate commerce.

That is the 10th amendment assertion.

I don't think state legislatures have the power to declare what constitutes interstate commerce. That is a judicial function. The consitution does not reserve to the states the power to declare what the power of the federal government is. If the federal government does not have power, then that power is reserved to the states. The power to regulate interstate commerce, however, is in fact granted to the federal government.

However wrongly Wickard might have been decided in terms of individual production and consumption of wheat, quite clearly a substantial amount of intrastate commerce in 50 states can affect interstate commerce. So even without Wickard, and without Raich, a good argument could be made that Congress can regulate intrastate manufacture and trading of a product that is a substitute for a product that is traded in interstate commerce.

Skeezix, if Congress passes a law, the president (or the executive branch) enforces it, and the courts says it's constitutional, then in a democracy, we have to obey it. There is only one form of government in which each individual has the power to decide for himself what laws do and don't apply: anarchy.

[zxcvbob]

This isn't about guns. It's about getting the SC to overturn Wickard v. Filburn because that ruling violates the 10th Amendment. With that ATF letter, the state Attorneys General should be able to challenge them in federal court without waiting for an "unfortunate incident" (like Ruby Ridge or Waco.)

The states will lose in the lower courts, and eventually the SC should get the case.

[skeezix]

Originally Posted by Ricky B

Skeezix, if Congress passes a law, the president (or the executive branch) enforces it, and the courts says it's constitutional, then in a democracy, we have to obey it. There is only one form of government in which each individual has the power to decide for himself what laws do and don't apply: anarchy.

Good thing this country wasn't founded as a democracy, eh? But your statement that it must be obeyed is false. You're statement is saying that if Congress passes a law that all Chinese people must be hanged, and the President (or executive branch) enforces this, and the courts conclude this law is fine and dandy, then it must be followed. It really makes no difference what the actual law or circumstance would be, the results would be the same?

These same issues were what started the Civil war here. Not slavery, but Federal intrusion into things it had no constitutional authority to do so. The states today are saying the same thing - "Get out and leave us alone". In fact, Lincoln made a statement along these lines.

Originally Posted by Abraham Lincoln

Any people anywhere, being inclined and having the power, have the right to rise up and shake off the existing government, and form a new one that suits them better. This is a most valuable, a most sacred right -- a right which we hope and believe is to liberate the world. Nor is this right confined to cases in which the whole people of an existing government may choose to exercise it. Any portion of such people, that can, may revolutionize, and make their own of so much of the territory as they inhabit.

We are not bound to obey silly unconstitutional laws. We are not bound to follow a law simply because the Federal government and courts say we should, especially when that law violates the Supreme Law of the Land of which our governments are supposed to be upholding.

[roy reali]

No coments about the Elastic Clause of the US Constitution? I thought that answers the question about what powers our Congress has.

One more thing, we are not a democracy, we are a federal republic.

[skeezix]

Roy -

I did, in post #17 - the piece from the Constitution I quoted is what people consider this.