Attorneys general in one-fourth of the states say the 10th Amendment essentially has been overturned by decades of incorrect court rulings, and the Supreme Court needs to repair the damage.
“By abandoning any meaningful standard for the substantiality of an intrastate activity’s effects on interstate commerce, this court has enabled the Congress to ‘draw the circle broadly enough to cover’ activity, that when viewed in isolation, would have no substantial effect on interstate commerce at all,” representatives for the 12 states have told the high court.
The states are Utah, Alabama, Alaska, Arizona, Idaho, Kansas, Michigan, Nebraska, Oklahoma, South Carolina, South Dakota and Wyoming.
The arguments are part of a surge of requests for the Supreme Court to take under review a dispute over the Montana Firearms Freedom Act. The law states that firearms made and kept in Montana are exempt from federal regulation under the Commerce Clause, which gives the federal government authority to regulate commerce only “among” the states.
The case was brought by the Montana Shooting Sports Association and its president, Gary Marbut, after the Montana legislature adopted the law and the federal government threatened firearms dealers and potential manufacturers.
The association earlier petitioned the high court to hear the case, arguing the federal bureaucracy has no authority to impose restrictions on a firearm made, sold and kept inside Montana.
The plaintiffs said the U.S. Supreme Court has gradually expanded Washington’s authority under the Commerce Clause so that anything can be regulated under it.
For example, various courts have ruled that under the Commerce Clause, a local law “tracking sex offenders” cannot be allowed because “any effect on interstate commerce from requiring sex offenders to registered is too attenuated to survive scrutiny under the Commerce Clause.”
Further, another court ruled that a disputed statute need not “be a purely economic or commercial statute” to fall under the economic jurisdiction of the Commerce Clause.
The states’ cases rely on the Ninth and 10th Amendments. The Ninth Amendment states: “The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.” The 10th says: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
In a filing submitted by nearly one-quarter of the states, representatives argue that the American judicial system has defined “commerce” so expansively that it “threatens to sweep all of productive human activity into federal regulatory reach.”
The court’s “rootless and malleable” standard for federal oversight of state activities “has encouraged the federal government to persist in its view that the Commerce Clause has virtually no limits,” states the brief, which also asks the Supreme Court to review the case.
10th Amendment turned ‘on its head’
“This court’s construction of congressional authority to regulate interstate commerce, the amici states agree, ‘[comes] close to turning the Tenth Amendment on its head’ as the ‘case law could be read to reserve to the United States all powers not expressly prohibited by the Constitution,'” the brief explains.
“By expanding congressional Commerce Clause authority far beyond the incidental powers contemplated by the Necessary and Proper Clause … the substantial effects test has transformed the Commerce Clause’s purpose – regulation of commerce ‘among the several States’ – into a means for Congress to appropriate state power,” it says.
But the attorneys general point out that the proper interpretation of the American system of government “provides that each state retains its sovereignty except to the extent the federal government has explicitly been granted sovereign powers by the United States Constitution.”
“A long-standing corollary posits that the federal government does not also possess the unfettered authority to regulate or impose a substantial burden on commercial activity that occurs solely within a sovereign state.
“This court should determine that neither the National Firearms Act … more the Federal Gun Control Act contravene or preempt the MFFA, which decrees that neither firearms nor ammunition that are manufactured in the state of Montana and that remain in that state are subject to federal law or regulations.”
Attorneys for the state on Montana separately filed a request to the high court, explaining that the firearms freedom act already is law in about one-fifth of the states.
“MFFA, and the similar laws enacted by almost a fifth of the states, obviously target a Congress widely perceived as exercising essentially unchecked powers. But these state laws should not be unexpected or disparaged; they embody the genius of our founders in a principle long recognized by this court: ‘In the tension between federal and states goes the promise of liberty.'”
States need to ‘check’ Washington
Montana also argued that the independent power of the states “serves as a check on the power of the federal government.”
“If the states are to serve as a real ‘check’ or ‘control’ on federal overreaching, then this court’s Commerce Clause jurisprudence – or more specifically, its Necessary and Proper clause jurisprudence – must provide enforceable limits that are more than just hortatory. This is especially true at the ‘outer limits’ where, as here, Congress tries to regulate purely intrastate activity in the ‘areas of criminal law and social police, where ‘states lay claim’ by right of history and expertise.'”
“It is long past time for the federal government and the lower courts to stop using [their own precedents] as a license to engage in pure conjecture as to ‘substantial effects’ on interstate commerce. More ‘careful scrutiny’ is required if the ‘constitutionally mandated balance of power’ between the states and the federal government is to continue ‘to ensure the protection of our fundamental liberties.'”
The Center for Constitutional Jurisprudence noted in its brief that the limitations on the federal government to its constitutional duties are foundational.
“Among the powers not delegated to the federal government was the power to regulate the health, safety, and morals of the people – the so-called police power,” it argues. “[Those] always belong to the states.”
And the Weapons Collectors Society of Montana explained that at the time Montana agreed to become a state – and Congress approved its constitution – there were no regulations, limits or restrictions on Montana’s gun industry.
“At the time Montana entered the union, no federal regulation of firearms and ammunition existed, so it would be impossible for the parties to intend that the wholly intrastate manufacture of firearm or ammunition would be subject to federal regulation. … This impossibility also extends to the parties being able to see 50 years into the future to intend that the unforeseen change in Commerce Clause jurisprudence would limit the ability of Montana citizens from these activities.”
WND reported earlier when the shooting sports association filed its request.
That brief argues that a wrongly decided case can be corrected in the American system by a rightly decided decision on the same issue.
“Case law decided in error can be overruled,” the brief argues.
A ruling is needed, it says, that would overturn existing precedent and re-establish the powers to which the federal government is limited, restoring the power given to states.
The case argues Congress has no power unless it is specifically granted by the U.S. Constitution.
Marbut, who has been barred by the federal government from building and selling a “Montana Buckeroo” rifle, recently released an open letter to members of the U.S. Supreme Court.
“The natives are beyond restless. They are at the stage of collecting torches and pitchforks and preparing to head for the castle gates en masse,” he says.
In his letter, Marbut charges the problem is “overweening federal power,” describing the government’s attitude as “overconfident, conceited, cocksure, cocky, smug, haughty, supercilious, lofty, patronizing, arrogant, proud, vain, self-important, imperious and overbearing.”
He insists there is plenty of evidence for his assertion.
He says the movement to enforce states’ rights, as provided by the 10th Amendment, goes beyond gun rights.
“Other states have enacted or introduced other ‘Freedom Acts,’ such as the Whiskey Freedom Act, the Light Bulb Freedom Act, and the Healthcare Freedom Act. But those only tell part of the story,” he says.
Marbut notes states are passing laws prohibiting enforcement of indefinite detention under the National Defense Authorization Act, the NDAA. Police agencies have publicly declared they will not enforce provisions of the Patriot Act, and some states have enacted various marijuana tolerance laws in defiance of federal law.
“These rejections of overweening federal power are happening not only at the state level, but at the county, city level, and with individual citizens,” he says.
“Frankly,” he writes, “the working people of America are fed up with an overbearing federal government bent on regulating everyone and everything.”
In his letter, Marbut cites President John F. Kennedy’s warning: “Those who make peaceful revolution impossible make violent revolution inevitable.”
His lawsuit, he says, “is our best, and could be the last or near last, attempt at the peaceful revolution we’d all emphatically prefer to the alternative Kennedy asserted.”
“It could well be that MSSA v. Holder marks an historical cusp similar to that served up to SCOTUS in Scott v. Sandford. (For any non-attorneys reading this, Scott v. Sandford is often known as the ‘Dred Scott decision,’ a Supreme Court decision thought by many historians to have been the spark that set off the Civil War, a decision that effectively upheld the institution of slavery.)”
The lawsuit was filed by Marbut and several firearms organizations in Montana as well as the Second Amendment Foundation after the state legislature adopted the Montana Firearms Freedom Act.
Washington maintains that under the Commerce Clause, it has the right to control commerce inside states, even though the constitutional provision specifies it’s for commerce “among” the states.
The case never was only about a Montana Buckaroo.
“I wrote the Montana Firearms Freedom Act (MFFA) in 2004, specifically to use firearms as the vehicle to challenge federal power under the Constitution’s Interstate Commerce Clause (ICC),” Marbut explains.
The lawsuit was thrown out by a federal district judge on grounds of standing and merit. The far-left leaning Ninth U.S. Circuit Court of Appeals disagreed, stating that the plaintiffs do have standing, but it affirmed the ruling on merit, opening the door to appeal to the U.S. Supreme Court.
Marbut argues in his letter that the problem traces back to President Franklin D. Roosevelt, who in a dispute over wheat price supports threatened to “pack” a Supreme Court with six extra justices so he could ram through his agenda of government control.
The Supreme Court folded, deciding the “Wickard” case in Roosevelt’s favor. The ruling formed the basis for the long string of later decisions that further tightened the federal grip on in-state activities.
Marbut explained the court created new definitions for the terms “regulate,” “commerce” and “among,” which became a de facto amendment to the U.S. Constitution.
He said “commerce” was changed to mean “any economic activity, no matter how minor,” “regulate” was given the meaning “prohibit” and “among” was made to mean “within.”
“The word ‘among’ is a bit slippery to define, although we all grasp what it means,” Marbut writes. “However, we can easily define what it does NOT mean with a simple thought experiment: You say, ‘Among the three children they had enough money for two ice cream cones.’ I ask, ‘Is an X-ray machine required to find the money?’ You answer, ‘No, because the money is not within them, it is among them.’ Thus, we see clearly that the meaning of ‘among’ does NOT include ‘within.’ Yet to make the Wickard decision do what FDR wanted, SCOTUS had to redefine ‘among’ to mean ‘within.'”
Marbut also argues in his letter to the Supreme Court that a standard principle of law is that provisions adopted later amend those adopted earlier. He notes that the Second Amendment, as well as the Ninth and 10th, were adopted after the commerce clause, and thus amended it.
“The laws that the U.S. asserts prohibit Montana from implementing the MFFA, and that prohibit me from making and selling the Montana Buckaroo sans federal regulation, are clearly a form of prior restraint,” he contends.
The U.S. Supreme Court, he says, “has been clear that prior restraint upon the exercise of constitutionally protected rights is not to be lightly tolerated.”
“Because federal laws being applied inhibit exercise of Second, Ninth and Tenth Amendment reserved rights in advance, those laws neatly fit the prior restraint definition. Generically, prior restraint of a reserved constitutional right may not be done when supported only by a rational basis. It will be difficult or impossible for the U.S. to muster persuasive arguments to satisfy a level of review more strict than a simple rational basis concerning an asserted federal trump of the MFFA.”
He also argues that Montana entered statehood in 1889 under a compact, or contract, and the state accepted the U.S. Constitution as it was understood at the time.
“If the people of Montana had understood in 1889 that this proposed Compact would preclude them from being able to make firearms, or even repair firearms, without a federal license, I seriously doubt that the Montana Legislature would have approved the Compact and Ordinance 1.”
Specific performance of that contract would be an appropriate remedy, or in the alternative, “rescission.”
“We prefer not to rattle that particular saber, but that ultimate remedy remains an inescapable final option that cannot be blinked away,” he writes.
What the court needs to do, he said, is “reverse Wickard and all of its progeny, based on demonstration that the Wickard Court improperly amended the Constitution.”
“That would certainly take courage. But such a decision would repair a lot of wrong that has happened in our nation, and would reaffirm the proper principles by which our federal government is supposed to be governed.”
Or it could simply leave the federal bureaucracy untouched, he says.
“Suffice it to say that where the primary role of government is supposed to be to protect the liberties of the people, our federal government is charging madly down the road to transform the U.S. into some form of police state where everything that is not permitted by government is forbidden. That is simply unacceptable.
“The time will come very soon when the Kennedy equation is likely to tip decisively in one direction or the other. I dearly hope that SCOTUS will avail itself of MSSA v. Holder to shepherd in the much preferred peaceful revolution in President Kennedy’s equation. The alternative is too dire to contemplate, but remains clearly potential.”
Attorney Nick Dranias represented friend-of-the-court party the Goldwater Institute and others in the Ninth Circuit’s oral arguments, and Quentin Rhoades represented Marbut and Montana shooting interests.
The arguments before the Ninth Circuit have been posted online: