Guns in Montana and Tennessee: Is Secession Next?

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.

Can a state unilaterally exempt its homemade products from the reach of federal law? Only if it is prepared to defy the United States Constitution.

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 is no doubt that, under these Supreme Court rulings, Congress has the power to regulate the manufacture and sale of guns that never cross the borders of Montana or Tennessee. Although some may disagree with this reading of the Commerce Clause, the more fundamental point is that, under our Constitution, the scope of federal Commerce Clause power is not for individual states to decide. In addition to misunderstanding the Commerce Clause, legislators in Montana and Tennessee seem prepared to defy the Supremacy Clause, under which federal enactments "shall be the supreme Law of the Land . . . ." As the High Court made clear in Gonzales, "the Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail," meaning that "state action cannot circumscribe Congress' plenary commerce power." The Gonzales Court expressly rejected Justice Thomas' radical suggestion in dissent that "States possess the power to dictate the extent of Congress' commerce power . . . ." Isn't that exactly what Montana and Tennessee think they have done?

The idea that states can unilaterally "opt out" of federal law is not new. Its ancestors range from the 18th century Anti-Federalist opponents of the Constitution, who thought only the states should have the power to regulate commerce, to John C. Calhoun's nullification doctrine that led to the Civil War, to Governor George Wallace standing in the doorway defying the Attorney General of the United States, who was enforcing a federal order requiring the enrollment of black students at the University of Alabama. In short, on the issue of gun control, Montana and Tennessee have cast their lot with the historic "losers" in the great constitutional debate over state vs. federal power.

The enforceability of federal gun laws against purely intrastate conduct in Montana and Tennessee seems destined for the federal courts. The question arises: If these states believe they have the authority to exempt gun manufacturing and sales from federal law, do they also claim the authority to defy federal court rulings - even by the Supreme Court - to the contrary? Is secession next?

For more information, see Dennis Henigan's new book, Lethal Logic: Exploding the Myths that Paralyze American Gun Policy.

 

 

Comments

[MycroftHolmes28]

How's it going Dennis "of the people" Henigan?

The Brady Bunch still keeping their heads above water financially?

Here's one of the SCOTUS briefs in the McDonald case for people to read.

http://www.chicagoguncase.com/wp-content/uploads/2009/11/08-1521ts.pdf

The Brady Bunch has already stated they will be filing a brief FOR NEITHER SIDE.

Can't wait to read that one.

[djcrsn]

I have a suspicion that decision was made because the BC had filed several briefs in the Heller case and lost EVERY d+mned time

[Ohio9]

It's laughable to claim that secession is the next step after exempting a state from federal regulation of domestic firearms on reasonable grounds that such guns have nothing to do with interstate commerce.

That's like saying, "oh my god, that man got a parking ticket! Is armed robbery and murder next?"

[Thirdpower]

Interesting that the Brady Campaign openly supports violations of the law in regards to pre-emption when it comes to passing more 'gun control' laws though:

"Members of the Philadelphia City Council were joined by Mayor Michael Nutter and state advocates and activists at a rally in the City Hall Courtyard On Wednesday. ...The event attracted hundreds of supporters and followed a hearing for the city's lawsuit that seeks to restore Philadelphia's right to enact their own gun laws."

[prayforroy]

Let us pray.

Apparently, TP believes the first amendment and lobbying for legislation is against the law. Of course, TP's belief only extends to firearms.

[Thirdpower]

Pot Meet Kettle.

[djcrsn]

prayforguy actively supports violating the law and the BOR is acceptable in her quest for complete civilian disarmament

[prayforroy]

Basically, the gun nuts are demanding the right to be able to provide access to firearms to criminals and the mentally ill. That's the ultimate result of these acts.

WRT seccession--I see nothing wrong with allowing TN to secede; I strongly encourage TN to do it. My only fear is that TN won't. After all, TN receives more than 27% more in Federal aid than it pays in Federal taxes. TN is also ranked 41st in terms of education.

[djcrsn]

prayforjad­egold--the proRKBA people are much harder on violent criminals than you are--you only seem interested in disarming the lawabiding

[prayforroy]

"the proRKBA people are much harder on violent criminals than you are--except if their crimes involve firearms."

There--fixed it for you.

[NYCexile]

This is too funny. He's been (for how many years is it now?) denying what the Constitution says in plain English, and now he's suddenly full of new-found ardor for the Document?

[djcrsn]

He is a rather huge hypocrite--Dennis the Menace supports Chicago and Kalifornia ignoring the 2nd amendment (which he could not quote correctly on the steps of SCOTUS)

[molonlabe]

"We Win, They Lose, Now Let's Get To Work(tm)"

Jon "I will work to defeat the ebil Gun Lobby" Corzine ousted in NJ.

Tim "we must close the (non-existent) Gun Show Loophole" ousted in VA.

NRA "A" rated candidate in NY-23 wins big.

Has a little more bite to it when we say it, huh Dennis?

[djcrsn]

Dennis has a bit of difficulty understanding that he is on the losing side of this issue

[45superman]

Interestingly enough, it seems that the federal government, under the Obama administration, is moving away from such an abusive interpretation of the "commerce clause," at least with regard to marijuana:

"A White House spokesman repeated Obama's view that 'federal resources should not be used to circumvent state laws.'"

http://news.yahoo.com/s/nm/20091019/lf_nm_life/us_usa_marijuana_justice

I agree, and so does the 10th Amendment.

[molonlabe]

"Can a state unilaterally exempt its homemade products from the reach of federal law? Only if it is prepared to defy the United States Constitution."

Bwahahahahaha!!!! How ironic it is, that Dennis Henigan is all of asudden a staunch supporter and defender of the US Constitution, when his whole existence has been built upon the infringement upon law-abiding citizens's 2nd Amendment rights.

Dennis, are things THAT bad over at the Brady Campaign???

[djcrsn]

looks like it--notice how quiet they are on McDonald Vs Chicago--on the Heller case, Paulie had already posted a dozen time on that case

[tonyspdx]

So, the government regulates if you can sell that head of lettuce to somebody in another state. Why, because, these laws were made to create a government supported monopoly (BIG BUSINESS and a corruptible Government system).

It's really very simple, stop the excessive government regulation and all would be fine. Here are just a few obtrusive governmental interferences. The Democrates and Republicans created this mess. They are the creators of the divisions in so many issues. They have pure hate for each other and are blind to what the people want, not what the vocal minority want, but what the people want. If you can't see this then you are the problem and one of them.
1. Gay marriage - freedom to be equal.
2. Assisted Suicide - freedom to choose death.
3. Medical Marijuana - freedom to choose what you put onto your body.
4. Gun Rights - freedom to choose to protect yourself.
5. Property Rights (emanate domain) - freedom to choose what you want with your property.
6. Abortion – freedom to choose what you do with your body.
7. Health Insurance (Try to buy insurance in a state that you don’t live in) - freedom to make a choice, period.

These are just some of the freedom of choice issues that are in jeopardy. So, if you pick and choose what freedom you will stand up for you are a hypocrite. You stand up for all of them, or you will eventually try to take away

[mommadona]

Ladies and Gentlemen - you are seeing the beginning of the end of this grand experiment, at the hands of short-sighted political prostitutes willing to sell their collective souls for the almighty dollar (which is due to collapse upon itself in 5....4....­3...2.....­)

THEN -if they decide this, they may NOT 'IMPORT' any ammunition from any other 'outside the state' source.

There ya go....

[Berettasskeeter]

The only state agencies that "import" ammunition are exactly that, state agencies. The rest are wholesalers and retailers. If the government stopped the cross-line selling of ammunition, ammo manufacturers within those states, of which there are many, would merely pick up the slack and become more viable concerns. I don't see a problem, though it is obvious that you thought this would settle the problem in favor of the Federal government.
Semper fi

[jhNY]

No. Secession is not next, as it is illegal, according to the victors the last time this question was asked seriously in the country.

[confidance government]

Might makes right?

[tonyspdx]

Show me where it’s illegal. I bet you can't. Yes, the civil war was fought and won for some very good reasons, but it wasn’t fought because it was illegal for the South to secede. States (as territories or countries, yes Texas was a country before it was a state) had Constitutions way before they entered the union. Most states (Montana) had conditions with the federal government as to they could secede if the federal government tried to create laws that preempted Montana state constitution. They were smart, they got it in writing.

[confidance government]

I support Montana & Tennessee in their quest to limit the scope and influence of the federal government in their states.

In your example of the ruling of Gonzales v. Raich you have shown how unjust and intrusive the federal government can be in the affairs of the states; resistance to this sort of overreach is desperately needed.