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Firearms Freedom Act Heads to the Ninth Circuit Court on Appeal
ammoland.com ^ | 1 December, 2010 | Gary Marbut

Posted on 12/03/2010 6:50:08 AM PST by marktwain

MISSOULA, MONT. --(Ammoland.com)- Plaintiffs in litigation to validate the principles of the Montana Firearms Freedom Act (MFFA) have appealed an expected but adverse federal district court decision to the Ninth Circuit Court of Appeals.

The plaintiffs in MSSA v. Holder include the Montana Shooting Sports Association (MSSA), the Second Amendment Foundation (SAF), and MSSA President Gary Marbut of Missoula.

The MFFA is designed to test the power of Congress to regulate everything without limits under the narrow power given to Congress in the Constitution to “regulate commerce … among the states.”

The MFFA declares that any firearms, ammunition and firearm accessories made and retained in Montana are not subject to any federal authority under the Commerce Clause. Congress must find some authority among the Constitution’s “enumerated powers” for every action it takes.

Plaintiffs filed the lawsuit MSSA v. Holder on the day the MFFA became effective in Montana, October 1, 2009. Since the MFFA enactment in Montana, the MFFA has been cloned and enacted in seven other states, and FFA bills have been introduced in the legislatures of 20 more states.

In a judgment entered on October 19, 2010, the district court granted the U.S. Motion to Dismiss. It is this judgment that is now appealed to the Ninth Circuit.

MSSA President and plaintiff Gary Marbut commented, “We’ve known all along that the district court will not provide what we seek, the reversal of a half-century of bad Commerce Clause precedent. We need to get to the U.S. Supreme Court for that. This notice of appeal puts us at the 50-yard line in our quest to get to the Supreme Court – it is a big step in the direction we need to go.”

Not only has the FFA concept attracted the interest and support of many other states frustrated with an overbearing federal government, but the MSSA v. Holder lawsuit has attracted an unusual, perhaps record, number of amici (amicus curiae, friends of the court). Some qualified observers say they’ve never seen a case that has attracted as much amici support at the district court level as this case has. Amici include the State of Utah (also representing several other states), Gun Owners Foundation (Gun Owners of America), the Goldwater Institute of Arizona, the Paragon Foundation of New Mexico, the Weapons Collectors Society of Montana, an amicus group of Montana legislators who supported the MFFA, and another amicus group of non-Montana legislators who sponsored or co-sponsored FFA bills in other states. The State of Montana has also intervened in support of the MFFA. Other amici are expected to enter in support of the MFFA when the lawsuit is argued before Ninth Circuit.

“It is totally obvious from the positions of federal participants, both lawyers and judges for the U.S.,” Marbut commented, “that the federal establishment definitely, almost desperately, wishes to prevent this issue from having a trial on merit.”

The likely options for the Ninth Circuit are to uphold the judgment of the district court or to overrule the district court and remand the case back to the district court for trial. Regardless of what action is taken by the Ninth Circuit, MSSA v. Holder is certain to be appealed to the Supreme Court. If the Supreme Court only reviews the district court dismissal on appeal to it, the Supreme Court can still rule on the merits of the case since part of the grounds for dismissal is based on merit.


TOPICS: Constitution/Conservatism; Extended News; Government; News/Current Events
KEYWORDS: 10a; 10thamendment; 2a; 2ndamendment; 9thcircuit; banglist; constitution; federalism; ffa; firearmsfreedomact; secondamendment; statesrights; tenthamendment
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There are some judges on the 9th circuit who actually believe in their oaths of office. This will be interesting.
1 posted on 12/03/2010 6:50:12 AM PST by marktwain
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To: marktwain

Oops! This was published 2 December, not 1 December 2010.


2 posted on 12/03/2010 6:51:29 AM PST by marktwain
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To: marktwain; harpseal; TexasCowboy; nunya bidness; AAABEST; Travis McGee; Squantos; wku man; SLB; ...
And so it begins.

Yes, this will indeed prove interesting.

Click the Gadsden flag for pro-gun resources!

3 posted on 12/03/2010 6:53:38 AM PST by Joe Brower (Sheep have three speeds: "graze", "stampede" and "cower".)
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To: marktwain; ForGod'sSake; bamahead

Federalism/10A ping!


4 posted on 12/03/2010 6:59:45 AM PST by Still Thinking (Freedom is NOT a loophole!)
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To: marktwain

Now, do we have the intestinal fortitude to actually support overturning Wickard v. Filburn and the New Deal “substantial effects” Commerce Clause, or will we run screaming in the other direction because it will also take down the federal domestic drug war?


5 posted on 12/03/2010 7:09:27 AM PST by tacticalogic
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To: tacticalogic

Kill TWO federal boondoggles with one shot??? Where do I sign?


6 posted on 12/03/2010 7:10:41 AM PST by Still Thinking (Freedom is NOT a loophole!)
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To: Still Thinking
Kill TWO federal boondoggles with one shot??? Where do I sign?

It's WAY more than two, bro. In addition to federal firearm regulations like the AWB, it will also take down the DEA, the EPA, the Department of Education, OSHA, and a litany of other federal agencies and legistlation like the "hate crimes" laws.

The "substantial effects doctrine" is a virtual open-ended grant of power and has been the federal governments "catch-all" claim of authority for decades.

This is Hugh.

7 posted on 12/03/2010 7:18:33 AM PST by tacticalogic
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To: tacticalogic
It's WAY more than two, bro.

Oh, I know. Believe me, I know.

8 posted on 12/03/2010 7:23:03 AM PST by Still Thinking (Freedom is NOT a loophole!)
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To: marktwain

The 9th Circus is the most liberal in the land. Hopefully the Supreme Court takes this case soon.


9 posted on 12/03/2010 7:25:34 AM PST by Freedom_Is_Not_Free (TSA apologists deserve neither Liberty nor Safety. END the TSA.)
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To: tacticalogic

The idea behind Wickard is so fundamentally at odds with the concept of a limited federal government that I simply cannot understand why it hasn’t already been overturned. The case stood for the proposition that a farmer cannot even grow food for his own family on his own farm, because of the fact that by doing so he will reduce demand for the food produced by other farmers (including some across state lines), thereby upsetting some 5-year master plan dictated by the Politburo errrr, Department of Agriculture. Utterly outrageous - what’s next, federal employees giving you the choice between going through a scanner that reveals every detail of your body vs. getting felt-up if you refuse the scan?

Oh.

Wait.

Nevermind.

Seriously, Wickard must be tossed out. It destroys the concept of federalism, the concept that we should be governed by those closest to us - physically and electorally. The way things are now, people 1,000 or more miles from most people pass laws in the dark of night without even knowing what’s in them, and then delegate the power to interpret those laws to a bunch of unelected, unaccountable bureaucrats. If the Founders could be somehow resurrected, I know for a fact that they’d begin fomenting a revolution as soon as they found out what was going on.


10 posted on 12/03/2010 7:28:17 AM PST by Ancesthntr (Tyrant: "Spartans, lay down your weapons." Free man: "Persian, come and get them!")
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To: marktwain

I hope they do this with tobacco.


11 posted on 12/03/2010 7:28:30 AM PST by fruser1
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To: Ancesthntr
The idea behind Wickard is so fundamentally at odds with the concept of a limited federal government that I simply cannot understand why it hasn’t already been overturned. The case stood for the proposition that a farmer cannot even grow food for his own family on his own farm, because of the fact that by doing so he will reduce demand for the food produced by other farmers (including some across state lines), thereby upsetting some 5-year master plan dictated by the Politburo errrr, Department of Agriculture.

And yet GWB, who professed to want "original intent" SC justices sent his Justice Department lawyers before the Supreme Court to argue to uphold it in the Raisch case.....

12 posted on 12/03/2010 7:35:03 AM PST by tacticalogic
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To: tacticalogic

Pull the trigger, let the feathers fly as they will!


13 posted on 12/03/2010 7:38:36 AM PST by MileHi ( "It's coming down to patriots vs the politicians." - ovrtaxt)
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To: Ancesthntr
-- Seriously, Wickard must be tossed out. --

It's not the Wickard case that's the problem. It's the way the Wickard case has been construed by subsequent courts, ignoring the law and facts of Wickard, and taking a pro-fed-power remark as having unlimited application.

Those who read to the end of the case find out that Filburn could have consumed the excess on premises without penalty, by feeding unthreshed grain to his livestock (a common means of consumption).

The Wickard Court suggests that Filburn could not consume his grain without penalty, then explains why allowing this will affect interstate commerce, and therefore it's permissible to penalize growing wheat for home consumption. But the law did not forbid growing wheat for home consumption.

14 posted on 12/03/2010 7:41:38 AM PST by Cboldt
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To: tacticalogic; Ancesthntr
...the Raisch case...

Was that the case where Wickard was cited by (Roberts?, Alito?) in the majority opinion? Do I just recall incorrectly?

15 posted on 12/03/2010 7:45:00 AM PST by MileHi ( "It's coming down to patriots vs the politicians." - ovrtaxt)
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To: MileHi
Stevens wrote the majority opinion in Raich. Scalia wrote a concurring opinion, trying to distinguish agreement with federal power over pot from his (supposed) disagreement with federal power of guns in school zones, per Lopez.

The state laws that aim to disempower the feds over firearms are going to be found unconstitutional by every Circuit that takes up a case. SCOTUS is apt to deny cert, but if it takes up a case, it will agree with the Circuit. The only way the feds will be reigned in on this is by force of violence. I'm not advocating that, just saying that no part of the federal government is going to relinquish a hold on the power to regulate firearms at the personal level.

16 posted on 12/03/2010 7:57:19 AM PST by Cboldt
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To: Cboldt
The only way the feds will be reigned in on this is by force of violence. I'm not advocating that, just saying that no part of the federal government is going to relinquish a hold on the power to regulate firearms at the personal level.

If they will not give it up, we're going to have to take it back. The longer we wait, the less likely it becomes that we will still have the means to do so.

17 posted on 12/03/2010 8:03:27 AM PST by tacticalogic
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To: marktwain
Congress must find some authority among the Constitution’s “enumerated powers” for every action it takes.

In theory only. Somehow, we the people need to restore this theory to practice.

18 posted on 12/03/2010 8:09:47 AM PST by MrB (The difference between a (de)humanist and a Satanist is that the latter knows who he's working for.)
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To: Cboldt
it's permissible to penalize growing wheat for home consumption. But the law did not forbid growing wheat for home consumption.

A difference without a distinction. The sticking point here is that the federal government, under the Commerce Clause, can regulate an activity that within itself is not commerce and does not cross state lines.

19 posted on 12/03/2010 8:09:52 AM PST by antiRepublicrat
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To: marktwain

Nothing complicated here...the people of Montana simply need to tell the leftists on the 9th circuit to go directly to HELL. We will make our OWN gun laws for our state. If the left does not like them, TOUGH!!!! Like the man said...COME AND TAKE THEM!!!!


20 posted on 12/03/2010 8:12:15 AM PST by Oldpuppymax
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To: Cboldt

That must be it. I recall being disappointed.


21 posted on 12/03/2010 8:13:49 AM PST by MileHi ( "It's coming down to patriots vs the politicians." - ovrtaxt)
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To: Ancesthntr
The idea behind Wickard is so fundamentally at odds with the concept of a limited federal government that I simply cannot understand why it hasn’t already been overturned.

Did you actually write that sentence?

22 posted on 12/03/2010 8:16:55 AM PST by Still Thinking (Freedom is NOT a loophole!)
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To: Cboldt
Those who read to the end of the case find out that Filburn could have consumed the excess on premises without penalty, by feeding unthreshed grain to his livestock (a common means of consumption).

We know about that. Even that isn't adequate deference by them to us.

23 posted on 12/03/2010 8:19:06 AM PST by Still Thinking (Freedom is NOT a loophole!)
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To: Cboldt
SCOTUS is apt to deny cert, but if it takes up a case, it will agree with the Circuit.

But SCOTUS has a built-in conflict, so any state that feels bound by an adverse SCOTUS decision (when the decision empowers the feds) probably needs their collective head examined.

The only way the feds will be reigned in on this is by force of violence.

Unfortunate but probably true.

24 posted on 12/03/2010 8:23:42 AM PST by Still Thinking (Freedom is NOT a loophole!)
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To: Oldpuppymax

It would be interesting to see the BATFE enforce federal gun laws not only without the help of state, county and local law enforcement, but with said law enforcement directly impeding all federal investigations.


25 posted on 12/03/2010 8:24:09 AM PST by antiRepublicrat
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To: antiRepublicrat
-- A difference without a distinction. --

True, in practice. But it's an abomination of legal logic, to take a law that does NOT penalize something, and assert that the decision upholds a law that does penalize something.

26 posted on 12/03/2010 8:24:52 AM PST by Cboldt
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To: antiRepublicrat
It would be interesting to see the BATFE enforce federal gun laws not only without the help of state, county and local law enforcement, but with said law enforcement directly impeding all federal investigations.

And under threat of imprisonment in a state prison! Wyoming's FFA has such a provision, as does New Hampshire's (though the NH one hasn't been enacted yet).

27 posted on 12/03/2010 8:27:05 AM PST by Still Thinking (Freedom is NOT a loophole!)
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To: Cboldt

The law did penalize something. He was fined for feeding it to his chickens on the premise that had he not grown enough wheat to do that, he would have had to buy it on the open market, which affects interstate commerce.

IOW, the federal government can control the tomato plant that you planted and that you eat, because that bite out of that tomato would have otherwise been a bite out of a tomato bought on the open market, affecting interstate commerce. Even if you would have bought the tomato from a local farm, that farm produced tomatoes sold on the open market. Even if that farm didn’t sell outside the state, any farm in the state producing that tomato meant one tomato that didn’t have to be imported from out of state, thus affecting interstate commerce.

This is a legal absurdity. A person must be insane, stupid, devious or all of the above to think that the Founders though the federal government could control individual actions with such granularity.


28 posted on 12/03/2010 8:43:15 AM PST by antiRepublicrat
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To: Still Thinking
-- And under threat of imprisonment in a state prison! Wyoming's FFA has such a provision --

Do you have a link for that? When I read the statute, and its history, I saw that Montana had initially stated it would defend a Montana citizen in federal court, if the feds attempted to enforce federal law over the Montana law. That provision (just to use the Montana AG to defend its own law) was removed before the Montana law was enacted.

Law as passed
Text of REJECTED Section 7

29 posted on 12/03/2010 8:51:56 AM PST by Cboldt
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To: antiRepublicrat
-- The law did penalize something. --

Yeah, but not feeding unthreshed grain to on-premises livestock.

From Wickard v. Filburn, 317 US 111 (1942)

Thus the penalty was contingent upon an act which appellee committed not before but after the enactment of the statute, and had he chosen to cut his excess and cure it or feed it as hay, or to reap and feed it with the head and straw together, no penalty would have been demanded. Such manner of consumption is not uncommon. Only when he threshed and thereby made it a part of the bulk of wheat overhanging the market did he become subject to penalty.

30 posted on 12/03/2010 8:55:40 AM PST by Cboldt
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To: Cboldt

Threshed, unthreshed, irrelevant to the concept. He grew it, he fed it to his chickens. They considered the very act of threshing to put it on the market, ignoring the basic fact that it was not actually put on the market.


31 posted on 12/03/2010 9:00:02 AM PST by antiRepublicrat
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To: antiRepublicrat
"This is a legal absurdity

Yes. Extending the argument even more ad absurdum, I'm surprised the Feds don't just use the "Interstate Commerce" clause to regulate every atom in existence -- right down to the air we breathe. After all, the atmosphere crosses state lines constantly, and I'm sure that a few molecules of O2 in my lungs right now must have come from, say, New Jersey.

32 posted on 12/03/2010 9:02:21 AM PST by Joe Brower (Sheep have three speeds: "graze", "stampede" and "cower".)
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To: Cboldt
From FirearmsFreedomAct.com:

Wyoming gov. signs bill on federal gun regulation – 3/11/10 The WFFA differs from the original Montana model in that it establishes potential state penalties for anyone arresting a Wyoming person making or selling firearms, ammunition or accessories done in compliance with the WFFA.

From the text of the bill:

6-8-405(b) Any official, agent or employee of the United States government who enforces or attempts to enforce any act, order, law, statute, rule or regulation of the United States government upon a personal firearm, a firearm accessory or ammunition that is manufactured commercially or privately in Wyoming and that remains exclusively within the borders of Wyoming shall be guilty of a misdemeanor and, upon conviction, shall be subject to imprisonment for not more than one (1) year, a fine of not more than two thousand dollars ($2,000.00), or both.

As far as state helping with federal defense:

6-8-405(c) The attorney general may defend a citizen of Wyoming who is prosecuted by the United States government for violation of a federal law relating to the manufacture, sale, transfer or possession of a firearm, a firearm accessory or ammunition manufactured and retained exclusively within the borders of Wyoming.

Which sounds redundant insofar as it may conflict with (b). If you arrested the fed while he was trying to infringe on your citizen's rights, how did that guy's case ever make it to court? Belt AND suspenders I guess.

33 posted on 12/03/2010 9:26:24 AM PST by Still Thinking (Freedom is NOT a loophole!)
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To: antiRepublicrat
A person must be insane, stupid, devious or all of the above to think that the Founders though the federal government could control individual actions with such granularity.

Heh, heh. He said "granularity"! (Other than that, I agree completely)

34 posted on 12/03/2010 9:28:43 AM PST by Still Thinking (Freedom is NOT a loophole!)
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To: antiRepublicrat
-- Threshed, unthreshed, irrelevant to the concept. --

I agree, but I think it is interesting that the Wickard case collapses on itself. All the rhetoric about "home consumption affects interstate commerce" is moot, in light of the law being upheld allowed home consumption.

35 posted on 12/03/2010 9:32:39 AM PST by Cboldt
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To: Still Thinking

Thanks for that. I was unaware of the details of the Wyoming FFA; and for some reason mistook your initial remark as a reference to Montana, even though you said Wyoming. My bubu.


36 posted on 12/03/2010 9:35:57 AM PST by Cboldt
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To: Cboldt
No problem. Note that if one of the BATFAGs is convicted, even if he gets the fine, he's now been convicted of a crime for which he "could have been sentenced to at least a year in prison", so he becomes a prohibited person. Let's see them put THAT in their pipe and smoke it.

As far as FFA's in general go, I can't understand a state passing one without this provision, unless that was the only way to get anything passed. "If you violate federal gun laws, you're in no hot water with the state (course you never were in the first place), but if the feds arrest and prosecute you in spite of this law, you're on your own" sounds like empty posturing.

37 posted on 12/03/2010 9:41:20 AM PST by Still Thinking (Freedom is NOT a loophole!)
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To: tacticalogic
Let's all pray together that the BATFE is approaching the end of its lifecycle.


38 posted on 12/03/2010 9:43:19 AM PST by B4Ranch (I have never met one, not one Veteran who enlisted to fight for Socialism.)
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To: tacticalogic

>>It’s WAY more than two, bro. In addition to federal firearm regulations like the AWB, it will also take down the DEA, the EPA, the Department of Education, OSHA, and a litany of other federal agencies and legistlation like the “hate crimes” laws.<<

This is why I don’t think we will see the solution come from our Courts. Think of the economic effect that closing all those agencies will have upon individual states and the entire country if it was all done simultaneously. That is simply too many people to lay off at one time because I doubt if three percent of them are self reliant.

The Socialist minded judges and legislators will never release control from that large of a crowd on their own freewill.


39 posted on 12/03/2010 9:51:46 AM PST by B4Ranch (I have never met one, not one Veteran who enlisted to fight for Socialism.)
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To: B4Ranch
That is simply too many people to lay off at one time because I doubt if three percent of them are self reliant.

That's always been my concern. These are exactly the kind of people you don't want around running loose on the street with time on their hands.

40 posted on 12/03/2010 9:53:56 AM PST by Still Thinking (Freedom is NOT a loophole!)
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To: Cboldt

So basically it boils down to Wickard making no sense whatsoever. A common theme in our government lately.


41 posted on 12/03/2010 10:48:46 AM PST by antiRepublicrat
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To: B4Ranch

>Think of the economic effect that closing all those agencies will have upon individual states and the entire country if it was all done simultaneously.

It would throw the doors in the public sector wide open; the new activity therein would need manpower to carry out... therefore we can see that there will be a rise in the demand for employees.


42 posted on 12/03/2010 1:18:06 PM PST by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
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To: Freedom_Is_Not_Free
Hopefully the Supreme Court takes this case soon.

Even if they do, there are some old Supreme Court cases finding that Congress has the power to regulate guns if they, or any of their component parts, ever moved in interstate commerce. See Scarborough v. United States (1977) and Barrett v. United States (1976). Hard to say if today's SCOTUS would overrule those cases.

43 posted on 12/03/2010 4:11:14 PM PST by Lurking Libertarian (Non sub homine, sed sub Deo et lege)
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To: marktwain; 17th Miss Regt; 2001convSVT; 2ndDivisionVet; A_Former_Democrat; A_Tradition_Continues; ..
Thanks StillThinking!

Someone should get an office pool going on how long it will take the 9th Circus to decide the district judge was dead on with his reasoning -- or lack thereof. Then they can all get together and do bong hits and laugh at those silly conservatives actually believing our Constitution means what it says.

44 posted on 12/03/2010 7:14:41 PM PST by ForGod'sSake (You have just two choices: SUBMIT or RESIST with everything you've got!)
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To: ForGod'sSake

What Good Can a Handgun Do Against An Army?
http://www.freerepublic.com/focus/f-backroom/2312894/posts


45 posted on 12/03/2010 7:17:10 PM PST by 2ndDivisionVet (Re: Gov. Sarah Palin: Even the lion has to defend himself against flies. ~German Proverb)
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To: 2ndDivisionVet

I don’t think I’ve ever told you thanks for posting that link I’ve seen on numerous occasions. It’s a point that everyone should take to heart and try to arrive at a decision BEFORE they come for our guns.


46 posted on 12/03/2010 7:24:53 PM PST by ForGod'sSake (You have just two choices: SUBMIT or RESIST with everything you've got!)
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To: MrB
In theory only. Somehow, we the people need to restore this theory to practice.

Get some judges who will inform juries that for a conviction they must find that the particular act of the defendant materially interfered with a legitimate exercise of a specific enumerated federal power. Congress may have the authority, via the elastic clause, to restrict actions which interfere with its ability to regulate interstate commerce, but only a jury armed with the particular facts of a case can know whether the particular action did in fact interfere with Congress' authority.

47 posted on 12/03/2010 8:20:45 PM PST by supercat (Barry Soetoro == Bravo Sierra)
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To: tacticalogic

I’m on board for it, but then I was for it decades before it was popular!


48 posted on 12/03/2010 9:06:22 PM PST by dcwusmc (A FREE People have no sovereign save Almighty GOD!!! III OK We are EVERYWHERE)
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To: dcwusmc; Neil E. Wright

ping...


49 posted on 12/03/2010 9:07:25 PM PST by dcwusmc (A FREE People have no sovereign save Almighty GOD!!! III OK We are EVERYWHERE)
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To: Still Thinking; B4Ranch

I don’t mind them running the streets as long as they are unarmed and powerless... sort of like they want US to be!!!


50 posted on 12/03/2010 9:18:13 PM PST by dcwusmc (A FREE People have no sovereign save Almighty GOD!!! III OK We are EVERYWHERE)
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