Guns, Omelets, and the End of Federalism

We’ve been hearing a lot about guns and the Second Amendment lately, but not so much about guns and the Tenth Amendment. Proposed federal gun laws might be good or bad policy, but what business does the federal government have regulating privately-owned guns (outside of the District of Columbia)?  The conventional wisdom is that federal gun jurisdiction flows from the infinitely-expandable interpretation of Congress’s power to “regulate” interstate commerce.  Nowadays, it means that Congress can pass any law that might “affect” interstate commerce. 

A while ago, the Montana legislature decided to test the limits of the commerce power by enacting the “Firearms Freedom” law.  The law declares that personal firearms that were manufactured in Montana and never left the state (ie, purely intra-state products) are exempt from federal regulations.

The Montana Shooting Sports Association brought a lawsuit seeking a declaration that it may manufacture and sell firearms within the state without complying with federal regulations.  Yes, American citizens must now go to court to establish their right to engage in intra-state commerce without federal interference.  Well, of course, the Association lost the case.  A federal court held that the association did not have “standing” to bring the suit, which is pretty rich, given that federal courts routinely grant standing to non-profits like the Sierra Club.  But then the Court went on to hold that the Firearms Freedom law was invalid — trumped by Congress’s broad power to regulate interstate commerce.  As the Court said, “when Congress makes an interstate omelet, it is entitled to break a few intrastate eggs.”  Charming, isn’t it?  Why is it so darn cute, I wonder, when Congress violates the Tenth Amendment, but not when it violates the First Amendment?

The Montana case is headed for argument before the Ninth Circuit on March 4.  I know, I know, it’s the Ninth Circus, so don’t hold your breath.  But perhaps the Supremes will take the case. Or perhaps another intra-state commerce law (there have been lots in recent years) will succeed. The resistance to federal overreach is just getting started.

  1. Tim H.

    I wish this case luck, but I always grimace when we have a suit like this, because I simply don’t trust the courts to uphold the Tenth Amendment.  I just assume we will lose.  But worse, I worry that if we lose, it will mean an explicit precedent that all of this is unambiguously kosher, and therefore it will be so much harder ever to overturn this Federal overreach.

    Legal-type Richetti:  If we lose, would we be worse off than before, or would  nothing have changed?

  2. Illiniguy

    By this quote from the decision:

    “Plaintiffs have failed to state a claim because the federal firearms laws are legitimate exercises of the commerce power as applied to the activity that Plaintiffs seek to have protected from federal regulation.”

    it’s clear that the court skated right over the clear language of the Montana statute and the restrictions placed upon the sale of “Made in Montana” firearms.

    Here’s something that’s puzzled me for some time. If the beef that I raise is sold wholly within the state of Illinois, I don’t need to have it inspected at a USDA facility, state inspection will suffice. It’s only when I sell to someone in another state that I need the USDA inspection. Why is my entirely intrastate beef transaction not subject to the same Wickard standard as Montana guns? Is it only that the FDA hasn’t yet written the rule?

  3. Illiniguy
    Tim H.: Legal-type Richetti:  If we lose, would we be worse off than before, or would  nothing have changed? · 11 minutes ago

    As to the Second Amendment question, I don’t think anything changes. However, as I stated in my last comment, the court’s opinion seems to find that by the mere fact that Federal firearm laws exist, that mere existence invokes Federal authority over purely state issues through use of the Commerce Clause. So long as Wickard v. Filburn is considered good law, the states are going to find it very difficult to argue that actions that take place solely within its own boundaries can be exempt from Federal law. Federalism is taking a beating, and one can only hope that after the 9th Circuit mangles the issue, the Supreme Court would take it up and use it as a means of overturning Wickard. Don’t hold your breath.

    If you want a very good explanation of the evolution of the interpretation of the Commerce Clause from 1787 to the Roosevelt Court, “The Twilight of Individual Liberty” by Hamilton Vreeland is an excellent source.

  4. Tim H.

    Illiniguy—I worry you may be right.  [Edit—in comment #2]  That the Federal government is assumed to be supreme, even in intrastate affairs, as soon as it decides it wants to act.

    I can’t tell you how much I hate, hate, hate any argument for Federal regulation that derisively uses the phrase, “a patchwork of state laws.”  The states are supposed to be the primary arenas of legislation, with the Federal government mostly stepping into the interactions between the states.  If the people of Montana have decided not to regulate something wholly within their borders, then the rest of the country doesn’t (shouldn’t, anyway) have any right overruling them, much less any business doing so.

  5. Tim H.
    Illiniguy

    Tim H.: Legal-type Richetti:  If we lose, would we be worse off than before, or would  nothing have changed?

    As to the Second Amendment question, I don’t think anything changes. 

    I expect that’s true, though I’m asking more about the 10th Amendment side of the issue (and I see you talk about that in more general terms, as well).  That’s my biggest Constitutional issue, and though I’m a sunny optimist overall, it looks like we have a long, tough row to hoe on this one.

  6. Illiniguy
    Tim H.

    I expect that’s true, though I’m asking more about the 10th Amendment side of the issue (and I see you talk about that in more general terms, as well).  That’s my biggest Constitutional issue, and though I’m a sunny optimist overall, it looks like we have a long, tough row to hoe on this one. · 1 minute ago

    Adam has promised a podcast on Federalism, which I’m sure will go a long way towards discussing your concern. My ham ‘n egg take on the issue is that the 10th Amendment is always going to play second fiddle to the argument that the Federal government can control anything that could conceivably affect interstate commerce. The problem I have is that if the Commerce Clause is so all-encompassing, why did the Framers even bother drafting the Tenth Amendment, since they’re so at odds with one another?  That’s why an examination of the development of case law interpreting the clause is so important to understanding how, or if, any 10th Amendment claim can be upheld.

  7. Joseph Paquette

    I just wonder, when does the 10th amendment apply anymore?  Next time anyone is speaking to an intelligent liberal, get an answer.

  8. Eeyore
    Illiniguy: Why is my entirely intrastate beef transaction not subject to the same Wickard standard as Montana guns? Is it only that the FDA hasn’t yet written the rule?

    FDA data mining has just picked up this thread and the regulations are being written as we speak. I can see them writing rules just to make sure nothing is left outside Federal reach. Unless all your feed is grown instate and the trucks that haul away your beef are manufactured instate, I can’t conceive why they haven’t “Wickardized” your inspection process. 

  9. Skyler

    Wickard pretty much ends the Tenth Amendment whenever commerce is involved.  That the gun is only sold in one state affects the market outside the state as well.  That is, by making and selling guns only in one state, it reduces the demand for guns from out of state, thus affecting interstate commerce.

    Wickard v. Filburn was the case where a farmer was growing wheat for his own farm’s consumption only and refused to comply with federal laws since his wheat was not involved in interstate commerce.  The Supreme Court ruled that just growing the wheat and using it himself reduced the demand for wheat and avoided the type of market controls that Congress intended to implement through the Commerce Clause.  That is, Congress wanted to control the price and availability of wheat among the states and Filburn’s production of wheat for his personal use deprived the government of its Constitutional power to regulate commerce by decreasing the amount he would have bought for his business and personal use.

    I think it goes without any doubt that this Montana law is directly equivalent to Wickard and will be found unconstitutional

    But it’s a great political statement, regardless. 

  10. Skyler

    I think with only a few exceptions, the Supreme Court has proven to be highly influenced by public opinion, and will stretch to great lengths to avoid making a ruling that won’t be enforced (see Robert’s craven Affordable Care Act opinion).  If enough states make laws like Montana’s, then the Court is more likely to side step, dance, pirouette, and somersault to not create a federal confrontation.

    Brown v. Board of Education was an exception.  The Rule is still that the Court will not risk a confrontation and its credibility.

  11. Tim H.
    Skyler: I think with only a few exceptions, the Supreme Court has proven to be highly influenced by public opinion, and will stretch to great lengths to avoid making a ruling that won’t be enforced (see Robert’s craven Affordable Care Act opinion).  If enough states make laws like Montana’s, then the Court is more likely to side step, dance, pirouette, and somersault to not create a federal confrontation.

    Although I wish this weren’t true, in principle, and that the justices would rule based on the law, perhaps we can use this to our advantage.  It’s worth a shot, and what can we lose?

  12. Tim H.

    You know, every time I hear of the Wickard decision, I think of John Donne.  I actually enjoy John Donne, and even “Meditation 17,” but I think the Federal government and its enablers have taken

    No man is an island, entire of itself… …any man’s death diminishes me, because I am involved in mankind.

    to absurd lengths in Wickard and its offspring:  No man is an island, and therefore we must abandon self-government.

    I’m exaggerating a bit with “abandon self-government,” but I really do believe that democracy and self-government require a great degree of popular sovereignty.  The people in that state must rule themselves, in the things that apply to them “domestically,” without the rest of the country piling on.  

    If we think that the rest of the country should have a say in each state’s internal laws, we would have to apply that world-wide, too.  The people of the whole world should have a say in each country’s internal laws…um…  Nuts!  They already went there, didn’t they?

  13. Skyler
    Tim H.: You know, every time I hear of theWickard decision, I think of John Donne.  I actually enjoy John Donne, and even “Meditation 17,” but I think the Federal government and its enablers have taken

    No man is an island, entire of itself… …any man’s death diminishes me, because I am involved in mankind.

    to absurd lengths in Wickard and its offspring:  No man is an island, and therefore we must abandon self-government.

    I prefer Simon, “I am a rock.  I am an island.”

    Donne’s line is not very American in outlook.

  14. BrentB67

    Perhaps the absurdness of this ruling will wake a few more folks up to our diminishing liberty and sovereignty.

    Federalism could be the way forward for republicans or non-democrats.