THE BLOG
05/22/2013 01:47 pm ET Updated Jul 22, 2013

Guns, Pot and States Rights

Kansas recently adopted a so-called "Second Amendment Protection Act." The law provides that Kansans can ignore any federal law that attempts to regulate guns in Kansas if the guns in question were made in Kansas and stay there. It would apply, for example, to a federal ban on assault weapons. Yet more incredibly, Kansas makes it a crime for any federal official to try to enforce federal law against such gun holders. US Attorney General Eric Holder quickly reminded Kansas that under the United States Constitution, the states do not have authority to override federal law.

Still, Kansas may be on to something. As the brewing collision of federal and state marijuana laws makes clear, there has to be some room for the states to have a say in what goods their citizens can possess and use. Eighteen states have legalized marijuana for medical purposes, and Washington and Colorado just did so even for recreational use. The problem is, what Colorado allows, federal law prohibits. Can the states opt-out from the federal laws? The Justice Department's position on these state laws has been murky and inconsistent.

The problem Kansas faces is that its approach is based on an outmoded understanding of Congress's powers under the Constitution. You might wonder why it is that Kansas sought to defy federal law only with regard to guns made in Kansas and possessed in Kansas. The reason has to do with the part of the Constitution that arguably grants Congress the power to regulate guns in the first place.

The only way Congress can get its hands on Kansas's guns, or California's pot, is by using its power under the Commerce Clause, which allows it "to regulate... Commerce among the several States." Kansas's argument is that it is not commerce "among" the several states if the guns Kansans use were made there and stay there. That's intrastate commerce, not interstate commerce, and Congress can only regulate the latter.

While Kansas's argument may seem right as a matter of constitutional text, the Supreme Court rejected that interpretation of the Commerce Clause over seventy years ago -- during the great Depression. What the Supreme Court rightly recognized beginning in 1937 is that just because something happens in Kansas alone doesn't mean it doesn't affect the rest of us. During the Depression, state's rights conservatives argued that Congress could not set minimum wages, or maximum hours for coal miners, or make union activity legal in those mines, because what happened in any given coal mine was about local, intrastate production, not the buying and selling across state lines. The justices initially bought the argument, but then they reversed course and rejected it. They came to recognize - as did the rest of the country- that even purely intrastate activity can have an impact on the interstate economy. Labor strife in one state could threaten commerce throughout the country; if no coal came out of West Virginia, industries in other states would suffer.

The Supreme Court has already rejected Kansas's reasoning when it comes to marijuana. Several years ago, in a case called Gonzales v. Raich, some California citizens challenged the federal ban on using marijuana for medicinal reasons, arguing that if the pot was grown and consumed in California, it was none of the feds' business. It was not, they argued, "commerce . . . among the several States." The justices quickly snuffed out that argument, making the point that even if the weed is legal in California, inevitably it will bleed out into the interstate market.

What legislators in Kansas should do - and what the Californians should have done - is read the Commerce Clause more carefully. Instead of focusing on "among the several States" they should focus on the word "regulate." Congress only has the power to regulate commerce, not prohibit it altogether. Although the Supreme Court has casually assumed the former necessarily includes the latter, that's wrong if one thinks for just a moment about why the framers of the Constitution put the Commerce Clause in the Constitution in the first place. The Commerce Clause was intended to open borders, not close them. It was concerned that the states might engage in trade wars, impose tariffs on goods from other states, or flat out ban them. The framers realized that the commercial health of the nation required a free flow of commerce.

There is plenty of evidence that it would have shocked the framers to learn that Congress - rather than the states - would have the power to decide what goods the people could possess, consume or use. As late as 1886 - a full century after the Constitution was adopted - the House of Representatives' Judiciary Committee deemed a proposed ban on oleomargarine (don't ask) "plainly unconstitutional," stating that "it could hardly have been within the minds of the framers of the Constitution to give Congress" the power to make what essentially was a decision for the state and its citizens.

Suppose Congress re-eanacted a federal ban on assault weapons. The question would be whether such a ban is a regulation of interstate commerce, or a prohibition of it. Some prohibitions can be regulations. For example, because a ban on the interstate transportation of diseased cattle does not shut down the livestock market, but instead protects it by assuring consumers the beef they buy will not make them ill and protecting cattle in the market from disease, it is a regulation not a prohibition of commerce. The tough question on guns is whether a federal ban on assault weapons works similarly, to protect the interstate gun market, or instead reflects Congress's attempt to shut down a disfavored market. One way to think about this is to ask: if a certain type of gun is banned, can consumers find a reasonable substitute? If yes, Congress may simply be regulating the market, rather than shutting it down.

The case is somewhat easier for concluding that Congress has no business prohibiting the sale of marijuana if the states want to allow it, especially for medical marijuana. Those who argue that marijuana should be legal, for medicinal uses, argue there is no effective substitute. We don't know this for sure, because the federal government has suppressed some of the scientific research that would tell us. However, it certainly seems marijuana is being banned not to protect us from unsafe pot, but because Congress does not like marijuana, period. If this is the case, there is a strong reason to be made that federal marijuana laws are unconstitutional.

Thus, rather than attempting to resurrect a nineteenth century notion that Congress cannot regulate goods wholly within a state - as the California plaintiffs did in the marijuana case, and Kansas's Second Amendment Protection Act would do - what we should be asking is whether Congress has the power to drive products out of the market altogether. Or whether that is a choice each state can make for itself. To the extent Congress is regulating to ensure a safe and wide-open interstate market, that's fine. To the extent Congress is making value judgments about what is or is not good for us, that's not its job - at least not so long as the states disagree.

Barry Friedman is the Jacob D. Fuchsberg Professor at New York University School of Law. In June he has an article coming out in the Supreme Court Review advancing this argument at length.

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