April 29, 2005

Earlier this year, State Representative Roger Koopman introduced legislation in the Montana House entitled the "Montana Firearms Freedom Act." The bill was inspired by the federal government's use of the Commerce Clause to regulate firearms. Under the Constitution, as written by the Founders, the federal government was not granted the general power to regulate the private ownership of firearms irrespective of the Second Amendment. To get around this little inconvenience, the federal government had their political appointees in black robes judicially expand federal power by re-writing the Commerce Clause from the bench. Koopman's legislation would exempt firearms made in Montana from federal regulation through the Commerce Clause as long as the firearms remain inside the State. Supporters of the legislation claim it would inspire a homegrown industry of gun-makers and send a message reaffirming states' rights.

While the author applauds Representative Koopman and those assisting him in this effort, it appears, from a reading of the proposed legislation, that they do not fully understand the scope of federal government's "judicially created" power under the Commerce Clause.

Purpose and Scope of the Commerce Clause

The Commerce Clause is found at Article I, Section 8, Clause 3 of the Constitution for the United States. It grants Congress the power "[t]o regulate commerce with foreign Nations, and among the several States, and with the Indian Tribes." The phrase "to regulate commerce.among the several States" is commonly known as the "interstate commerce clause" and is the provision most commonly used by Congress to regulate firearms and firearms owners within these United States.

In his 1913 book, "The Framing of the Constitution," Max Farrand explained, in part, why this provision was incorporated into the Constitution:

"Pending a grant of power to congress over matters of commerce, the states acted individually. A uniform policy was necessary, and while a pretense was made of acting in unison to achieve a much desired end, it is evident that selfish motives frequently dictated what was done. Any state which enjoyed superior conditions to a neighboring state was only too apt to take advantage of that fact. Some of the states, as James Madison described it, 'having no convenient ports for foreign commerce, were subject to be taxed by their neighbors, through whose ports their commerce was carried on.'... The Americans were an agricultural and trading people. Interference with the arteries of commerce was cutting off the very life-blood of the nation and something had to be done."

In a 1993 Notre Dame Law Review, Roger Pilon re-affirmed this observation when he wrote that the purpose of the Commerce Clause was "to enable Congress to break down state barriers, to prevent states from restricting the free flow of commerce among themselves."

The Commerce Clause was a free trade provision. It granted Congress the power to make regular, or normalize, commerce between individual State and individual State. It did not grant Congress the general power to control individuals or private business engaged in commerce.

The Commerce Clause becomes a "New" Source of Federal Power

The emergence of the Commerce Clause as a "new" source of federal power was addressed in a speech by Alfred Clark before the Oregon Bar Association on September 2, 1943. Mr. Clark stated, in part:

"Today, in a very real sense, law no longer governs the American people. I am not now referring to war regulation and the like, but to conditions existing before the war, and which, unless the trend is checked, are likely to continue and to intensify after the war is over.

This has been accomplished, to a very large extent, through a new and, in many aspects, a startling interpretation of the commerce clause of the Federal Constitution, which is now being used to obliterate the States and convert our system into a highly centralized form of government, exercising uncontrolled police power in every State, over all, or nearly all, local affairs and industries."

"The commerce clause of the Constitution is now pressed into service as the basis for asserting the power of unlimited control and all regulation of all local and State affairs."

"Agriculture, mining and manufacturing are now held to be in interstate commerce, and all phases subject to Federal regulation."

After discussing several decisions by the Supreme Court, Mr. Clark explained the chain of causation, as defined by the Court, to be followed in determining what is interstate commerce. He used the following example to illustrate the danger and absurdity of the Court's decisions:

"This may sound to you like a soporific nursery rhyme. Not so. On the contrary it is modern judicial logic.

Indeed, if Junior decides to emulate Popeye and insists upon a double portion of spinach at the dinner table, thus increasing the demand on the market, and lessening the supply to meet the demand, his act may so affect interstate commerce as to bring him within the ambit of Federal control."

As stated by Mr. Clark, the simple act of consuming food, according to decisions by the Supreme Court, can be used as a pretense to bring an individual within the scope of federal control.

Substantially Affects Interstate Commerce

If you think Mr. Clark had a few too many drinks before his 1943 speech, then consider the following statements by Supreme Court Justice Clarence Thomas from the 1995 case of U. S. v. Lopez:

"We have said that Congress may regulate not only 'Commerce - among the several states,' - but also anything that has a 'substantial effect' on such commerce. This test, if taken to its logical extreme, would give Congress a 'police power' over all aspects of American life."

Justice Thomas went on to state that under the "substantially affects" interstate commerce standard adopted by the Court, "[c]ongress can regulate whole categories of activities that are not themselves either 'interstate or commerce.'" The activity simply has to have the "potential" to substantially affect interstate commerce to fall within the scope of federal control.

Under the Court's Commerce Clause rulings, going for a walk could subject an individual to federal regulatory control because the activity has the "potential" to affect interstate commerce. Being absent from the house could cause an individual to miss a solicitation for a commodity, which, it turn, has the "potential" to effect the flow of commerce.

If this sounds like paranoid hysteria, then the following statement by Justice Thomas should change your mind in a hurry:

"Under our jurisprudence, if Congress passed an omnibus 'substantially affects interstate commerce' statute, purporting to regulate every aspect of human existence, the Act apparently would be constitutional."

The author hopes the reader will pause for a minute or two and consider the implications of this statement.

The Montana Firearms Freedom Act

For the sake of argument, let's assume the State of Montana passes the Firearms Freedom Act and is able to meet all the standards outlined in the legislation. And just to be safe, Montana gunsmiths are able to produce firearms made from components and materials that never moved in interstate or foreign commerce. Even if Montana and its gunsmiths were able to meet these standards, the federal government would still be able to regulate the firearms through the "substantially affects interstate commerce" standard created by the Supreme Court.

If the reader will recall, Justice Thomas stated--- "[c]ongress can regulate whole categories of activities that are not themselves either 'interstate or commerce.'" Every time a Montana resident or citizen purchased a firearm produced within the State, it would have a substantial effect on interstate commerce because the purchase would alter the flow of firearms in commerce by decreasing the supply and demand for interstate products. Thus, thanks to the federal judiciary, those guardians of the rule of law who altered the scope and intent of the Commerce Clause from the bench, Congress could step in and regulate any firearms produced in Montana irrespective of the Firearms Freedom Act.

Note: In the case of United States v. Stewart (2003),

The Ninth Circuit Court of Appeal ruled, on very narrow grounds, that Congress cannot, under its Commerce Clause power, prohibit the mere possession on a homemade machinegun. The Court held that under section 922(o) of Title 18, the criminal section under which Stewart was charged, mere possession of a homemade machinegun cannot be viewed as having a substantial effect on interstate commerce.

The Montana Firearms Freedom Act goes beyond mere possession of a homemade firearm and mentions firearms commercially produced in the State. Thus, the author does not believe it would fall within the Stewart holding.

If you are interested in finding out more about the Constitution, take a look at this book. I use it in many of my articles and it is the best book I've found on this subject. Bob

The Federal Government: Its True Nature and Character: Being a Review of Judge Story's Commentaries on the Constitution of the United States.

Reprint of the 1868 edition. ''Perhaps the ablest analysis of the nature and character of the federal government that has ever been published. It has remained unanswered.'' This review of Judge Story's Commentaries on the Constitution of the United States is perhaps the ablest analysis of the nature and character of the Federal Government that has ever been published. It has remained unanswered. Indeed, we are not aware that any attempt has been made to challenge the soundness of its reasoning. The great vise of Judge Story and the Federalists consisted in desiring the clothe the federal government with almost monarchical power, whereas the States had carefully and resolutely reserved the great mass of political power for themselves. The powers which they delegated to the federal government were few, and were general in their character. Those which they reserved embraced their original and inalienable sovereignty, which no state imagined it was surrendering when it adopted the consitution. Mr Madison dwelt with great force upon the fact that ''a delegated is not a surrendered power.'' The states surrendered no powers to the federal government -- they only delegated them. 160 pages.

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