Montana’s States’ Rights Showdown

Newsweek ^ | 23 April, 2010 | Daniel Stone and Stuart Taylor Jr.

[marktwain]

State lawmakers have done a lot since President Obama's election to shake off Uncle Sam, passing "sovereignty" resolutions and a record number of laws that specifically defy Congress on issues such as legalized marijuana and health-care reform. Most make the same claim: that the U.S. Constitution gives the federal government power to regulate commerce between states but doesn't permit interference in purely local affairs. Later this year, the Montana Firearms Freedom Act, which proclaims that guns manufactured in Montana and sold in state are not subject to federal rules such as background checks, is slated to become the first of these Obama-era commerce challenges tested in court. But the case, which originated when a gun-rights group sued the Justice Department for threatening a crackdown, shouldn't give separatists hope: it's doomed to fail, as will similar rebukes.

That's because no state is an island (Hawaii included), and Congress can regulate anything that could jump state lines. It's a category, says George Mason University professor Nelson Lund, a Second Amendment scholar, that excludes almost nothing—certainly not pot and guns.

[Ken H]

It was an all out endorsement of Wickard.

...the authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce. Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.

J. Scalia, concurring in Raich, 6 June 2005

http://www.law.cornell.edu/supct/html/03-1454.ZC.html

[txhurl]

I agree!
2/3 of the States should call a Constitution Convention and explicitly define the Commerce Clause in an amendment. With 3/4 States ratification, we can reduce the power from DC to an acceptable level.

---

And there is probably not a better time to do it, either!

Every state has some resource the feds either have their grubby paws on or is eying.

[txhurl]

What all is required to call a Constitutional Convention, and where do you hold it?

Do the Governors manage it? Or Secretaries of State?

[marktwain]

“If I were given the power to edit the Constitution, it is one of the first few things I would change to explicitly return it to its original purpose.”

It would not matter. The people who made such “interpretations” of the Constitution cared nothing for their oath of office. They specifically were looking for ways to overthrow and undermine the Constitution through their sophistry. They see the Constitution as an impediment to their rule, not as a morally binding contract.

[Oldpuppymax]

“Newsweek” cheering for the left. Am I shocked!

[Ken H]

See this FR essay from April 25, 2007 posted by Publius:

"A Convention for Proposing Amendments...as Part of this Constitution"

See also:

Constitutional Convention As A Last Resort? - posts #25 & #26

[txhurl]

Thank you!

Let’s convene!

[bamahead]

The same argument Newsweak makes here was used in the 2005 SCOTUS Medical Marijuana case. In that decision, the SCOTUS seemed to grant the FedGov license to regulate ANYTHING that MIGHT cross state lines as 'interstate commerce'...whether it actually crossed or not.

The only difference here, is that there's not a 'Constitutional Amendment' explicitly protecting your access to medicines. We'll see if this matters to the SCOUTS.



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[stephenjohnbanker]

These “pearls of wisdom” brought to you, by Newsweek.....which is so popular with Americans, it lost 46 million last year.

Will it cease publication soon? One can only pray ;-)

[Recovering_Democrat]

ugh. Sounds pretty damning. OTOH, I s’pose he might be re-thinking that in light of the overreach HusseinCare has broached.

Let’s see how it goes.

[Waco]

Hush! Hush! They’re ALL in on this TREASON and they know it’s TREASON.

[Jack Black]

This argument, that the interstate commerce clause gives the federal government the power to regulate everything, renders the interstate commerce clause meaningless.

No, it actually renders the entire Constitution meaningless. The whole point of the Constitution was to set up the mechanism of the government, the rules the government must follow, and the limitations on the government.

Article One is all about setting up the Congress. Towards the end we get to Section 8. Section 8 is often referred to as the 'enumerated powers', that means it is a list of what things the Congress may legitimately make laws about. The very first power enumerated is this:

The Congress shall have power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

This is the misused "general welfare clause". It doesn't say the government can pass any laws to support the general welfare (the lib claim), it says that taxes have to be for the general welfare (not for the upkeep of some special favored group or well connected individual, as had been done under the British.)

The 'tards are clearly lying when they stretch this to cover all the things they use if for.

The second great 'tard lie about the constituion is the so-called "commerce clause". It's also part of the 'enumerated powers'. It reads, in full:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

This, too, was not blanket right to Congress to regulate all commerce everywhere in the USA. This becomes very obvious when you take one step back, and look at Section 8 in its entirity:

Section 8

The Congress shall have power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish a uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and Post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the Supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

That's it. That is the FULL AND COMPLETE list of things that the Congress of the United States is authorized to pass laws concerning. Thus, 90% of the current government is illegal.

• The Congress of the United States is not authorized to set up manditory retirement systems and to compel citizen participation in them.

• The Congress of the United States is not authorized to provide foreign aid to other countires.

• The Congress of the United States is not authorized to create milage requirements for automobile manufacturers in the United States.

• The Congress of the United States is not authorized to compell individuals to buy health insurance

• The Government of the United States is not authorized to buy, price support, and force farmer participation in the sales of agricultural commodities.

• The Congress of the United States is not authorized to pass laws forcing communities to provide free housing for the poor, much less to erect and manage such housing, acting as landlord for many millions of state residents.

I could, literally, go on all day.

This is the terrible secret of the US Constitution that even many Conservatives don't want to admit. The existing government of the US is largely illegal (unconstitutional).

This is the huge threat to the entire liberal edifice: Five Supreme Court justices could remove it all at once. Everything from FDR on could, and should, be ruled null and void and ended. SSI, Medicare, Medicaid, all of it.

This is why the 'tards will fight like a cornered rat to keep the SC packed with libs. That is the life support system for Federal Occupation Government that has usurped and replaced the legitimate Constitutional Government of these United States.

[bert]

If a Montana gun jumps the line into the sewer that is Philadelphia and it is in interstate commerce.

If it fails to meet federal criteria, it can’t be sold in the sewer. It is ok however in Montana where the federal law is not applicable and is trumped by state law.

[Jack Black]

2/3 of the States should call a Constitution Convention and explicitly define the Commerce Clause in an amendment. With 3/4 States ratification, we can reduce the power from DC to an acceptable level.

The Republic would likely not survive such an exercise. Read Volume 3 of Travis McGee's excellent "Enemies Foreign and Domestic" series to see who liberal activists might likely hijack such a proceeding. At a minimum I expect the 2nd Ammendment would be "revised", but probably a bunch of other things, too.

I think it is way too risky an endevour. Why not pass the ammendments using the traditional process?

[Balding_Eagle]

Thank you. Some sense needed to be brought to this.

[UnbelievingScumOnTheOtherSide]

2005 SCOTUS Medical Marijuana case. In that decision, the SCOTUS seemed to grant the FedGov license to regulate ANYTHING that MIGHT cross state lines as 'interstate commerce'...whether it actually crossed or not.

Wickard v. Filburn (1942) was far broader than that, allowing Congress to regulate anything that "affected" anything that might be involved in interstate commerce. That is the linchpin of all federal regulation and nanny-state tyranny.

[WVKayaker]

If you said you could kill a certain “someone”, you could go to jail, and never get our. Do not say the unmentionable charlatan’s name...

[WVKayaker]

out = our

[xmission]

The original purpose of the interstate commerce clause was not to give the federal government control over all interstate commerce or actions which could relate to interstate commerce, but to prevent states from restricting and taxing it like they had been doing under the Articles of Confederation.

This. It was one of the worst things we ever did, when we excepted the perverted definition we are now subject to.

[B Knotts]

Scalia failed miserably on that decision. He was policy-making, instead of doing his job as a Supreme Court justice.