Posts Tagged ‘Constitution’

Today’s guest post is another tie-in to my earlier post about “Montana Made” law. This one comes from Houston attorney Jeff Matthews, courtesy of the Tenth Amendment Center. Enjoy!


Commerce, Jurisdiction and Firearms Freedom Acts

State efforts to reclaim their jurisdiction are great. But in some respects, the states are still showing signs of apprehension of, and/or undue deference to, the federal government.

Various states have passed legislation, collectively referred to as “Firearms Freedom Acts.” Though they may vary in the details, a common thread in these acts seems to be that a state considers a firearm to be within its jurisdiction if it is manufactured within the state.

Colt Delta Elite 10mm

Colt Delta Elite 10mm

The obvious reason for this common thread is that if a gun entered from another state, the argument that it falls within federal jurisdiction under the Interstate Commerce Clause can be invoked. However, such an argument would be incorrect.

Congress has the power to regulate interstate commerce. Just because a gun crosses state lines does not mean it did so as a part of commerce. Many people move from state to state and take their belongings, including guns, with them. This is not commerce.

Secondly, there is a temporal issue raised by assuming any gun that has come from another state is within the ambit of federal regulatory jurisdiction. As stated, the federal government is empowered to regulate interstate commerce. But what if a gun entered a state as part of interstate trade in say, 1980, and here it is 2010? The gun is no longer the subject of any act of interstate commerce and has not been for 30 years. It is specious, at best, for anyone to believe that any product that ever was the subject of interstate commerce forever remains the subject of federal regulatory control.

Jurisprudence has evolved from asserting federal jurisdiction over “commerce among the several states,” as intended, to anything “affecting commerce among the several states.” There are legitimate reasons for the desire of the federal government to try to extend the reach of its jurisdiction in this manner. There are many scenarios in which purely intrastate activities can thwart the ability of Congress to exert its authority over interstate commerce. The possibilities are so many that even the founders might admit that intrastate activities can effectively frustrate the original intent to confer on Congress the power to regulate interstate commerce.

However, just because the federal government might experience frustration in wielding the power conferred on it does not mean the federal government can unilaterally change the construct of its power. In such cases, amendment is the process which was designed to remedy such problems.

What the federal government has done is to effectively re-write the Constitution to expand its authority and dispense with its burden to show it is operating within the legitimate confines of its authority. By construing Congress’ power to regulate things which affect interstate commerce, Congress does not have to concern itself with whether the thing it seeks to regulate is actually the subject of interstate commerce.

For example, some scholars have noted that Congress could not effectively regulate things if it had to become entangled in the almost impossible process of proving that the thing it seeks to regulate was the subject of interstate commerce. In short, a person seeking to avoid federal regulation could easily frustrate regulators by demanding, “Prove these carrots, shoes, flowers, etc. came from within another state.” In addition, what if XYZ Corp. produces widgets in Alabama and is moving them to its warehouse in Mississippi, where it will offer them for sale there? Is movement, without a transfer of title, commerce? Whether it is, should be, or should not be, here, we can easily see the problem is complex.

Undeniably, these issues would put a heavy burden on the federal government if it had to comply with the law as written, since, as the proponent asserting its jurisdiction, the burden is always on it to prove by preponderance every fact essential to its claim that it has jurisdiction. Without being able to trace things and to know the specifics of the transactions, if any, in which they are engaged, the federal government would lose its case.

But isn’t that what due process is all about? If a person has a claim against another person, or if the government has a claim against another person, common notions of due process have always held that the former has the burden of proof. The mere fact that the burden of proof is difficult, if not impossible, to meet in certain cases should not offer an excuse to ignore the burden and re-write the rules without following proper procedures.

Constitution with quill

U.S. Constitution

In summary, to the extent the federal government might have difficulty in a great many cases to demonstrate its jurisdiction over things alleged to be the subject of interstate commerce, this does not mean the federal government, in the absence of Constitutional amendment, can simply restate its jurisdiction to make it extend to all things which affect interstate commerce. Had this been the scope of power granted to it, the Constitution could have been written that way. But it was not.

In reclaiming their proper jurisdiction, state legislators need to take heed that their role is to jealously guard their jurisdiction and to protect it from federal overreach. By so doing, the goal of protecting their citizens from federal excesses is served.

Accordingly, state legislators need to make sure they do not assume significant portions of their jurisdiction away. In the instance of Firearms Freedom Acts, there is no reason to assume that if a gun originates from another state, it is automatically the subject of federal jurisdiction under the Interstate Commerce Clause. The point of origin of a thing does not mean it is part of commerce.

Therefore, there is no logical reason why states enacting Firearms Freedom Acts should claim jurisdiction over only those guns which are manufactured in their states. States should be exercising jurisdiction over guns if (1) they are in the state, and (2) they are not currently engaged in a transaction that constitutes commerce between a person of the state and a person of another state.

*Jeff Matthews is a practicing attorney in Houston. He graduated from the University of Texas, School of Law in 1993 and was licensed that year.

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Today we have a guest-post by an old friend, Todd Fichter. Thanks a lot, Todd! Take it away….


They are coming. Some come by land. Some come by sea. Some come on horseback. Some come on snowshoes. But rest assured, they are coming. They are coming to find you, and find you they will.

It may sound like a movie trailer about aliens or zombies, but actually it is the 2010 Census takers. Census forms have been mailed to every household in America, and are supposed to be returned by April 1. Those who do not return the form, or if the form needs further clarification, will receive a visit from a census taker. So, what is the census all about and why is it so important?

U.S. Bureau of the Census seal

U.S. Bureau of the Census seal

WARNING! Extreme history content!

Article 1, Section 2 of the United States Constitution says:

(Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.) [The previous sentence in parentheses was modified by the 14th Amendment, section 2.] The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.”

So, according to the Constitution, the census is a headcount in order to determine the number of Representatives each State receives in Congress. (The direct tax portion is moot, because with the passing of the income tax, the federal government takes money directly from the people, not the States.)

In 1790, the first census was taken by federal marshals and their appointees. The questions asked on the first census were the names of the heads of families, the number of white males sixteen and older, the number of white males under sixteen, the number of white females, the number of all other free persons, and the number of slaves. It did not take Congress long to expand the role of the census, soon adding questions greater defining age categories and regarding occupation. By 1850, census takers were asking for the value of real estate owned, if over 20 could they read or write, and my favorite – is the person “deaf, dumb, blind, insane, idiotic, pauper, or convict?” The 2010 Census consists of 10 questions, but 250,000 households also receive the American Community Survey (ACS) which asks detailed information regarding your dwelling, occupation, income, education and health.

Why does the Census Bureau need all this information? According to the Director of the Census Bureau, it “will be used to help each community get its fair share of government funds for highways, schools, health facilities, and many other programs you and your neighbors need.” According to the Census website, that is $400 Billion in federal funds up for grabs. That all sounds nice, but isn’t this a little far astray from the original intent of the census? What if I don’t want to answer all those questions? Well, the Director says you may face a fine between $100 and $5000 for failure to answer or providing false answers.

United States Constitution, page 1

United States Constitution (first page)

Not so fast, Mr. Director. Regardless of the claims that all this information gathering is legal and Constitutional, there are several reasons to doubt its validity. First of all, the Constitution itself states the purpose of the census is for a headcount to determine the number of Representatives for each State. Congress, in 1997 (in Pub. L. 105-119, title II, Sec. 209, Nov. 26, 1997, 111 Stat. 2480), affirmed this purpose as the sole Constitutional purpose of the census. There have been court cases which also challenge the legality of requiring citizens to provide the additional data: U.S. v. Little, 317 F.Supp. 1308 (D.C.Del. 1970), also U.S. v. Rickenbacker, 197 F.Supp. 924 (D.C.N.Y. 1961.) and U.S. v. Carter, 4 U.S.Dist.Ct.Haw. 198 (D.Haw.,1913). The Fourth Amendment of the Constitution guarantees us a right to private property, including information about our person. Government agencies, including law enforcement cannot invade this right to privacy without a warrant issued based upon probable cause.

Another issue is the security and protection of our privacy in the information we give in the Census. The Census Bureau assures us that no one, not even law enforcement can gain access to the private information we provide. However, during World War II, census information was used to ascertain the location of Japanese-Americans for the purpose of their detention and internment. Also, it would be good to remember that all this data is stored on computers, and we all know how computer data, no matter the provided protection, is easily compromised. In fact, just this week, the U.S. Government had to issue an apology to over 3 million college students, because their private data was stolen from a student loan database.

So, what do we do? Well, you could be cooperative, and fill out all the forms in their entirety, just as you would other surveys. But if you feel uncomfortable providing the federal government all that information, you may want to include a note with your partially filled out census form that says you are invoking your Fourth Amendment rights, and will not be providing answers to all the questions. What questions must you answer? How many people live here is a good start. Also, depending upon how you interpret the Fourteenth Amendment, you may want to include the age and sex of all the people in your household. Other than that, there is dubious validity to the federal government requiring you to answer the other questions. Since the chance of enforcement is historically small, and the risk monetarily is only $100, you may consider, like I have, that this is one area you say, “No, thank you.”