Brady Campaign's Dennis Henigan seems to have
problems understanding this document
Related Articles
The Brady Campaign's Dennis Henigan is apparently as unimpressed with the 10th Amendment as he is with the 2nd. This can be seen by his reaction to passage in Tennessee and Montana (and consideration elsewhere) of bills that would exempt firearms, ammunition, and firearm accessories made and sold within the state, from federal gun laws.
That reaction is one of fussy disapproval.
We know that individuals can defy the law. Can a state legislature defy the law? When it comes to the gun issue, apparently it can.
I refer to the extraordinary legislation passed into law by the states of Montana and Tennessee declaring that guns or ammunition manufactured and retained entirely within the borders of those states are "not subject to federal law." Apparently, similar legislation has been introduced in Texas, Alaska, Minnesota, South Carolina, Florida, Arizona and Colorado. [Ed. note: you forgot Ohio, Dennis!]
Henigan then goes on to justify federal gun laws under the infamous "interstate commerce clause."
Under the Constitution, Congress has certain enumerated powers, including the power "to regulate Commerce . . . among the several states." In its 2005 ruling in Gonzales v. Raich, the Supreme Court reaffirmed the principle, first set out in the Depression-era case of Wickard v. Filburn, that the Commerce Clause allows Congress to regulate purely intrastate activity involving a product, if it rationally concludes that to leave such activity unregulated would undercut its regulation of interstate commerce in the product. In Gonzales, the Supreme Court upheld Congressional power to ban the possession and use of marijuana, even by a California resident who cultivated her own marijuana and used it for personal medical purposes within the state entirely in accord with state law.
There are a couple problems with that "reasoning." One is that in justifying the Gonzales v. Raich decision, one of the points on which Justice Scalia relied is the inability to distinguish "controlled substances manufactured and distributed intrastate" from "controlled substances manufactured and distributed interstate." That would not be the case with firearms, ammo, and accessories manufactured and sold under the new state laws, which require the items to be stamped "Made in Montana" (or Tennessee, etc.).
Another problem is an issue I pointed out earlier--the federal government itself, under the Obama administration, is backing off from such an abusive interpretation of the "commerce clause," at least with respect to marijuana.
A White House spokesman repeated Obama's view that "federal resources should not be used to circumvent state laws."
Indeed they should not, and by virtue of the much-abused 10th Amendment, must not. Henigan, we can be sure, will try to find some way of dismissing the 10th Amendment's relevance--just as he dismissed the 2nd Amendment's relevance in the lead-up to the Heller decision. Perhaps even now, there's a recording of him reciting the 10th Amendment, edited by him to fit his beliefs--something like this, perhaps:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved . . .
Amazing what can be accomplished with a bit of creative editing of the Constitution, but I wonder; where does one get "Liquid Parchment"?
Comments
Since you mentioned Wickard v. Filburn, it is very important to note the following troubling situation concerning the dirty work of pro-big federal government justices. Both Wickard v. Filburn and the previous United States v. Butler case had tested federal laws which drove up prices of agricultural produce by limiting agricultural production. But while justices decided against Congress in US v. Butler, it seemingly changed its mind by deciding for Congress in Wickard v. Filburn.
What is troubling about these cases is this. Eight justices been nominated by pro-big federal government FDR by the time that Wickard v. Filburn was decided. And while US v. Butler had emphasized the 10th A. as evidence of Congress's limited powers, FDR's justices had scandalously watered the 10th A. down to a mere rumor (my words) in Wickard v. Filburn. So FDR's pro-big federal government justices had wrongly started sweeping 10th A. protected state sovereignty under the carpet by that time.
In one of my constitutional law courses in 1954(!) [grad school, U. of Florida] we reviewed a case that had come before SCOTUS. I don't recall anything except the topic and a bit of background. It is the background that shows how far the Feds--even back then--would reach to extend their control mechanisms.
The Feds had decided that a NYC office building was engaged in interstate commerce and the thing went to court. Lower court(s)ruled that the building was in interstate commerce because employees of some of the building's tenants used the elevators when they were carrying documents (including mail received from out of state) concerning their firms' business in other parts of
the United States.
So watch your back any time those vultures are circling you.
So... is the 'regulate' in 'regulate interstate commerce' different than the 'regulate' in 'well-regulated militia' ?
No, I don't think so, either.
Based on notes about Commerce clause by a constitutional expert, the USSC was wrong to blur distinction between intrastate and interstate commerce.
"For the power given to Congress by the Constitution does not extend to the internal regulation of the commerce of a State, (that is to say of the commerce between citizen and citizen,) which remain exclusively with its own legislature; but to its external commerce only, that is to say, its commerce with another State, or with foreign nations, or with the Indian tribes." --Thomas Jefferson, Jefferson's Opinion on a National Bank, 1791.
Note that Jefferson is not referenced in either Wickard v. Filburn or US v. Wrightwood Dairy Co., pivotal cases where FDR's pro-big federal government, outcome-driven justices perverted the Commerce clause. Again, state sovereignty is treated as a rumor in Wickard v. Filburn, not mentioned in Wrightwood.
Congress is wrongly ignoring its Article V obligation to request new powers from stat
Got something to say?
Examiner.com is looking for writers, photographers, and videographers to join the fastest growing group of local insiders. If you are interested in growing your online rep apply to be an Examiner today!