Posts Tagged ‘State sovereignty’

What was the difference between the Confederate and U.S. Constitutions?

Don’t Know Much about History (2003), by Kenneth C. Davis

One week after Lincoln’s inaugural address, on March 11, the Confederacy adopted a constitution. Given the long-held arguments that the crisis was over such issues as federal power and states’ rights, and not slavery, it might be assumed that the new Confederate nation adopted some very different form of government, perhaps more like the Articles of Confederation, under which the states operated before the Constitution was adopted.

Original Stars-n-Bars flag of the Confederacy

The first "Stars and Bars" flag of the CSA (flown 4 Mar 1861 – 21 May 1861)

In fact, the Constitution of the Confederate States of America was based almost verbatim on the U.S. Constitution. There were, however, several significant but relatively minor differences, as well as one big difference:

  • The preamble added the words, “each State acting in its sovereign and independent character,” and instead of forming “a more perfect Union,” it was forming “a permanent federal government.” It also added an invocation to “Almighty God” absent from the original.
  • It permitted a tariff for revenue but not for protection of domestic industries, though the distinction between the two was unclear.
  • It altered the executive branch by creating a presidency with a single six-year term, instead of (then) unlimited four-year terms. However, the presidency was strengthened with a line item veto* with which certain parts of a budget can be removed by the president. (Many U.S. Presidents of both parties have argued for the line item veto as a means to control congressional spending. A line item veto was finally passed in 1996 and used first by President Bill Clinton. However, in 1998 the U.S. Supreme Court ruled that the line item veto was unconstitutional.)
  • The major difference between the two constitutions regarded slavery. First, the Confederate version didn’t bother with neat euphemisms (“persons held in service”) but simply and honestly called it slavery. While it upheld the ban on the importation of slaves from abroad, the Confederate constitution removed any restrictions on slavery. Slavery was going to be protected and extended into any new territory the Confederacy might acquire.

In other words, while “states’ rights” is a powerful abstraction, and the back-and-forth between federal power and the power of the states has been a theme throughout American history, there was really only one right that the southern states cared about. Examining the speeches by southern leaders [e.g., Calhoun] and the Confederate constitution itself underscores the fact that the only right in question was the right to continue slavery without restriction, both where it already existed and in the new territories being opened up in the West.

* For more info on line item veto, go here.

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I thought the next piece I did about unions would be on the infamous Card Check legislation. But there is a more pressing problem that I need to make sure you are aware of — namely, the “Police and Firefighter Monopoly Bargaining Bill”.

For the past year, this thing has been gathering steam. Its official name is the “Public Employer-Employee Cooperation Act”, which sounds innocuous enough. But, when you start to look at what it really is, it should make the hair on the back of your neck stand at attention. Essentially, the purpose of the bill is to put every police officer and firefighter in the nation under the control of union bosses. (Can you say “National Police Force”?) It will override state and local laws in 27 states to do it. But, hey, anything for Obama’s Big Labor buddies. Even worse, this is just the start of a plan to place ALL public employees, state and local, under union control!

IAFF logo

IAFF logo

Under the provisions of this act, no town, county, or state can “take a pass”. Even if they resist, ultimately they will be forced to hand over their public safety workers to the unions, else the Federal Government will step in. (Sounds like this could be a 10th Amendment issue, too. The Public Service Research Council is pursuing the (un)constitutionality angle.)

Do we really want to give Big Labor the power to tell police and firefighters when & where they can do their jobs? Do we want these public servants to have their careers at the mercy of labor leaders? Should they have to pay mandated union dues, whether or not they want to even join the union? Do you want your local public safety workers to be beholden to a federal union — deciding on jobs, pay, & benefits on a national scale — rather than to your local community and local laws? No, no, no, & NO!

When your police are ordered out on strike, who will defend your home and loved ones?

When union militants set up picket lines around fire stations, who will put out the fires?

We all know the kind of greed, corruption, and strongarm tactics that typically go hand-in-hand with today’s huge labor unions. Harassment and extortion are Standard Operating Procedure. There are the budget-busting, city-bankrupting pension & labor contracts that the big unions are able to negotiate through sheer force of numbers and the occasional payoff or threat of bodily harm. Then, there are the salaries and perks for the local union bosses themselves that have to be paid. Our states and municipalities are under enough financial burden as it is in today’s economy. (Remember, the powers-that-be have already added more healthcare-related expenses to the states. Cap-n-tax may be on its way, as well.) This would break many of them.

Take the city of Vallejo, CA, as one recent example. It went bankrupt last year, when almost 75% of its budget was spent on satisfying union contracts for police and firefighters! Much of the rest of California is in similar straits, with the state budget facing a multi-billion dollar deficit. But, instead of admitting they are partially to blame, union bosses threatened to strike!

IUPA logo

IUPA logo

This bill was introduced in the House as H.R.413 and is now on the Senate docket, too, as S.3194. Reid and Pelosi are both hot to pass it. While Financial Reform has distracted attention from it, the Police and Firefighters Monopoly Bargaining Bill could be up for vote any day now and is sure to be rammed through, just as Obamacare was. In fact, last month they tried attaching it as Amendment 4174 to the Appropriations Bill (H.R. 4899). (Grassroots action stopped it.) Unfortunately, it also has bipartisan support, with some — e.g., Scott Brown (R-MA) — thinking that it will “level the playing field for all first responders and set rules that can govern them equally.” (They really need to think this through better!)

As Mark Mix of the National Right to Work (NRTW) has pointed out,

[This bill] would create an almost unimaginable number of new ‘bargaining units’ at a cost impossible to estimate. The truth is, in places where Big Labor has control over public employees, union officials guarantee citizens pay more in taxes and get less for their tax money in return. Union bosses insist on more government spending, block service improvements for taxpayers, and push for outrageous demands that no union boss forcefully ‘representing’ workers in a competitive private business would dare to seek.”

This is a major power grab by the unions!

If you don’t want your state and local communities subject to increased financial burdens, possible loss of volunteer police & firefighters, potentially violent strikes and threats of strikes, corruption, coercion, and increased tension between the public and the safety workers that protect them, then help us kill this bill. First, read Warner Todd Huston’s IBD editorial, which gives a great analysis of the bill and its consequences. You can also visit the NRTW web-site for more info, maybe make a donation. Then, contact your representatives in Washington and tell them how much this bill stinks! No monopoly bargaining!

Sack the act!

Tell your friends!

In Parts 1 and 2 of this series, I examined and reacted to several sections of Jenny Hwang’s recent guest column in Christianity Today titled “Arizona’s Border Crisis“. Specifically, I focused on those issues raised and hypothetical scenarios given that could impact not only the illegal immigrants themselves but their families and the churches/organizations who minister to the needs — spiritual & otherwise — of the illegals and their families. In this third post, I wanted to say a bit more about the concerns raised and address the larger issue of the proper Christian response in these matters.

Columbian children playing games

First, let’s return to the article — specifically, the very first paragraphs, which say:

In January, I ate at the home of an immigrant family in Phoenix in which the dad recently became a Christian because of the hardships he has endured while living in the U.S. The undocumented immigrant father has been attending church every week to draw closer to God because he lives in fear of being separated from his two young children, who are U.S. citizens. He feels torn about living in the United States illegally, but he also feels that God has called him to stay in the United States for a reason and struggles every day to reconcile those two feelings.

This man considered moving his family back to Mexico because life was so hard in Phoenix, but was concerned about his two young children who would go back to a country they never knew. They fed us generously with freshly made tortillas and pulled pork as the children ran around the yard, yelling at each other in a mix of Spanish and English, much like the children of any immigrant parents who grow up blessed by knowing two cultures.

During the same visit, my colleague met an undocumented immigrant woman named Maria whose son was killed by a drunk driver; she cannot press charges because of her undocumented status.”

The first thing one thinks is, “Oh, those poor souls. They are good people, just trying to make it through their already difficult lives. These terrible laws that make them hide their illegal — I mean, undocumented — status just add to the stress and threaten them and their families.”

Maybe the father left an even more dangerous or difficult situation back in Mexico, maybe not. Either way, he knew what he was getting into, or at least had a good idea, when he decided to cross the border illegally. So did Maria, who tragically lost her son. They knew the risks. They must, therefore, be prepared to deal with the difficulties of living where they are not supposed to be. Because they did not seek citizenship through legal channels, they do not get the benefits and privileges of living here as legal residents or naturalized citizens.

Of course, Ms. Hwang and others use these kinds of stories to pull at the heartstrings, stir the readers’ emotions, so that they are primed to “stand up for the oppressed” against those who would cause them pain. This is the rhetorical technique called “pathos”. Don’t let yourself be manipulated by it.

You may think I’m being cold, that I’m insensitive to the plight of many immigrants who flee to the U.S. for any number of reasons, but mostly to make a better life for themselves and their loved ones. But, I’m not. I understand it very well, and if I were in their shoes, I might decide to risk it, too. Nevertheless, if you do the crime, you should be willing to do the time, pay the fine, endure hardship on you & your loved ones, or some combination thereof. It’s the price you pay. We are all responsible for our actions.

Immigrants caught climbing border fenceI think part of the difficulty some people have in taking this seriously is that the crime in question seems so harmless by itself. In fact, people take great risks and pay all they have (usually to “coyotes”, who smuggle them in and often demand more payment once here) to come over. They just want a better life, after all. But, there are good reasons for a sovereign state to want to monitor and limit those whom it lets in, especially for permanent residence and to partake of the freedoms and protections and other benefits in a democratic, free-market nation like the United States. Even if the immigrant in question is not guilty of past crimes, it seems to me that the first step in proving s/he is ready to assimilate and abide by the laws of the nation they want to become a part of is to follow the laws for getting in. (As my soon-to-be sister-in-law is doing.)

I understand the desire to help these people — i.e., those whose only crime was to cross the border without proper documentation. (I’m ignoring any minor violations of traffic safety or civic regulation, for now.) And, I especially understand the desire of churches who feel they have a duty to help those in need, etc. But, what if it was a different crime? What if the individuals in question were all guilty of theft? Or, fraud? Would you still feel obligated to help them avoid the authorities? Should a church help such individuals become integrated into the local community? (In fact, one could argue that illegal aliens living & working in the U.S. are guilty of fraud & theft, since they often obtain fake identities and take advantage of things like free healthcare and education, which are funded by taxpaying citizens.)

One might be tempted to bring up the biblical example of the Hebrew midwives who lied to Pharaoh about why they wouldn’t/couldn’t kill newborn Hebrew boys, because it served a higher purpose. Or, similarly, Corrie Ten Boom and her family hid Jews in their home and lied to the Nazis. In both cases, they were breaking the law in order to help the “oppressed”. But, these are not good analogies or valid excuses. Remember, the laws in question were by evil & corrupt rulers/governments and demanded that the babies/Jews be put to death (or, possibly, sent to horrible concentration camps, in the latter case).

Or, one might refer to New Testament instruction to love your neighbor, minister to others, etc. (Even to your enemy, to some degree.) Don’t these illegal immigrants qualify for this humane treatment? Shouldn’t good Christians help them out, too? Well, yes and no. It’s one thing to provide someone with a hot meal, treat wounds and/or sickness, maybe even give them a blanket or clothing. Those are immediate needs for basic survival. But, ongoing aid would be wrong. To my mind, it would be akin to aiding & abetting a fugitive. (Do churches get special privileges when it comes to giving aid & comfort? Something classified under “sanctuary” or some such thing? I don’t know.)

Church buildingUltimately, I suppose, it’s a matter of conscience, but that conscience also needs to be properly informed and prepared to pay the penalty. If someone knowingly shelters illegal aliens in their basement, or transports them somewhere with the intent of helping them stay longer as undocumented residents in the U.S., for example, they have no right to cry foul if they get caught, fined, jailed, and/or their vehicle impounded. We are a nation of laws, and those laws must be heeded, whether you think they are stupid or unfair or whatever. For Christians, I think the N.T. makes it clear that we are to obey the laws of the land unless those laws require doing something clearly contrary to God’s moral laws. It would have to be pretty clear and pretty serious, and I don’t think helping illegal aliens to remain here illegally meets those conditions. The better course of action is to work within the system to improve the laws and make it easier for decent, hard-working people who want to become Americans (and not just take advantage of living here) to immigrate here legally.

Then, we can greet our new neighbors with open arms, open hearts, and open homes.

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Agree? Disagree? Think I’m an uncaring clod? Am I thwarting the Gospel? Care to add something I left out, or posit a different argument? All (civil) comments welcome…

In my last post (Part 1), I examined some of the issues brought up by Jenny Hwang in her recent Christianity Today article, “Arizona Border Crisis”. So far, I’ve been less than impressed with her research and reasoning. Let’s continue…

This law should trouble conservatives because it greatly broadens the government mandate and could add a fiscal burden to the state. In some studies, for example, the setup and operational costs of having local and state immigration enforcement programs has been $4.8 to $5 million a year. Also, many churches that minister to immigrants by integrating them as the newest members of society may be charged with carrying out unlawful activity.”

This is an odd paragraph for a number of reasons. What does she mean, exactly, about this law broadening the government mandate? It does put some more responsibility on Arizona law officers/agents, but it’s certainly within their purview as members of Law Enforcement. Essentially, they are picking up some of the slack, due to the federal government’s apparent (intentional?) apathy on the matter. Financial considerations are certainly appropriate when budgeting resources, I agree. And large programs & projects do cost a lot of money. When it comes to enforcing the law, though, I would think safety/security and justice should take priority. Plus, by just throwing those numbers out by themselves, she isn’t really making much of a case. (I’ll address that third sentence in a moment.)

Illegal Immigrant at Church

Illegal Immigrant at Church (borrowed from NY Times)

And, again, the problem isn’t with immigrants, per se. Ours is a nation of immigrants, after all — the Great Melting Pot. The problem is with those who decide it is OK to break our nation’s laws to get here and then complain when we have the nerve to punish and/or send them back. Those are the risks you take.

…While the majority of Americans want to end illegal immigration, targeting families and churches that are ministering to the strangers in their midst is a step backward in addressing illegal immigration by preventing the integration of the newcomers, restricting the churches’ ability to share the Gospel with these new neighbors, and deterring focus off of effective solutions that will fix the broken immigration system.”

I could be wrong, but I really don’t think there are grounds to say that families and churches are being “targeted”, as in legislators conspiring to use enforcement of immigration law as a means of harassing immigrant families and interfering with the work of the churches that minister to them. I doubt that anyone’s sharing of the Gospel was in mind when crafting the bill; nor were they thinking “Let’s bust up some Latino families and cause them some misery!” I don’t read minds, but I’m pretty sure. Alarming readers of these “unintended consequences” borders (pardon the pun) on fear-mongering. As I’ve pointed out in Part 1 and earlier posts/comments, most of the proposed scenarios for potential harassment and arrests of church & family members are unfounded. And, if the “newcomers” arrived here illegally, then their integration should be prevented, before family & societal ties become stronger, which is precisely the kind of thing liberals (and tenderhearted conservatives) point to as a reason for granting amnesty.

In the early 1800s, when Irish immigrants were coming in boatloads to America’s shores, they were scorned and discriminated against, and encountered many difficulties finding jobs.  Many stores had signs that said ‘No Irish Need Apply’ in their windows. These new Americans were initially not welcomed because they were different from the Anglo-Saxon, Protestant Americans who had settled the land before them. When we look back on previous immigrants who came to the U.S. and consider the unwelcoming environment to which they first arrived, it is also important to remember that these immigrants’ descendants are considered full-blooded Americans who integrated and contributed to our country in immeasurable ways.”

The fact that they were “scorned and discriminated against” is, indeed, shameful. I would add that the anti-Irish attitude was not just because they were “different from the Anglo-Saxon, Protestant Americans” that preceded them but also because they were seen as competition for the existing jobs. Sadly, that’s an “immigrant issue”, no matter where they come from; but, it’s really beside the point, here. Those immigrants (for the most part) came over legally and (for the most part) did their best to assimilate and become productive members of American society, which is why their descendants had the opportunities to make the wonderful contributions that they have.

Let me try to give the short version of her argument… Nineteenth-century Irish immigrants to the U.S. were scorned and discriminated against, just like today’s Hispanic (and other) immigrants. Those Irish immigrants had descendants who became productive American citizens, just as today’s immigrants will. Therefore,… what? We should be lax with our immigration laws and ignore whether or not immigrants are here legally or not? Why? So we have the opportunity to share the Gospel with them, perhaps? That’s a non sequitur. Even if the Irish immigrants in question came here illegally, OR if the law was anti-immigrants in general, Ms. Hwang’s implied conclusions just do not logically follow. (If I’m missing something or misrepresenting her case, please let me know.)

This new Arizona law highlights the need for the White House to lead, and for Congress to enact, comprehensive immigration reform that will increase border security, provide more responsive legal avenues through which future workers can come to the U.S., and require undocumented immigrants currently in the U.S. to earn the right to stay in this country while paying appropriate penalties.”

On this, at least, we can largely agree. I’m all for the White House showing leadership on this matter, as long as it is responsible leadership that respects our immigration laws and the principles behind them. Increased border security is definitely an immediate needed. I’m not sure what Ms. Hwang has in mind for these “more responsive legal avenues”. Eliminating some bureaucratic red tape could be helpful, for example, but I hesitate to promote making American citizenship easily attainable. It is a privilege, and those not fortunate enough to have been born here should be willing to go through some hoops to gain it.

It is amazing to me the number of people who seem to think that anyone should have the right to go live wherever they want. It’s a naive view of the world that seems to be ignorant of things like national/state sovereignty and national interests, economic considerations, etc. And, once here, many seem to think that the government owes them, that they are entitled to many rights & privileges. Gee, I wonder who gave them that idea…? (Any of them ever tried slipping into Mexico or Cuba or China and demanding, like, anything? “Sure, buddy, here’s some gruel and a cold, rat-infested, 6×6 cell. And if you complain, consider yourself volunteered for the next public execution.” The nicer countries will probably just ignore you and let you fend for yourself.)

As for that last bit, I’m glad Ms. Hwang added those last four words. I’m not for blanket amnesty (obviously), but neither do I think every illegal immigrant should just be kicked out of the country forthwith without regard for things like family status, criminal record (or lack thereof) both here and in their native country, employment history, job skills & education, “extenuating circumstances”, etc. I would probably be more strict than Ms. Hwang, but perhaps some sort of multi-point system can be developed to determine who goes, who stays, who spends time in jail & how long, who pays fines & how much, etc.

When it comes down to it, the first commonsense step in such “reform” is to enforce the laws, federal and state, that are already in place. And that’s exactly what the new Arizona law is trying to do.

As for Ms. Hwang, I hope her other writings are better researched and more carefully reasoned and written.

My final comments are now available in Part 3.

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!

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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.

Copyright © 2010 by TenthAmendmentCenter.com.

I don’t carry a gun, nor do I live in the inner-city or out in a rural area, so firearms aren’t usually a part of my daily “scene” or concerns. Of course, the local “Shooters” store down the road reminds me that there are plenty of people in my neck of the woods that are packin’. And that’s just fine with me. Helps keep the crime rate down.

Colt Python, .357 Magnum

Colt Python, .357 Magnum

My point is that, while I believe strongly in the Second Amendment right for a U.S. citizen to “bear arms”, those gun rights issues don’t normally (feel like they) hit very close to home. They’re not usually very bright on my radar screen, if you will. But, I do read the occasional news item about gun ownership, conceal-carry laws, etc., and I just came across one that I decided to write about here. Of course, it’s not just about gun ownership….

It starts with the Firearms Freedom Act, originally introduced in Montana and passed on Apr. 15, 2009, but now being “cloned” and introduced in several other States throughout the nation. As of April 2010, resolutions have been introduced in the legislatures of 27 states. (Go here to find out the status of your State.) The legislation claims that certain firearms, parts, accessories, or ammunition, which are made and kept within a particular State are beyond the Constitutionally-granted powers of Congress to regulate under the “Interstate Commerce Clause” — which is usually abused by the political Left, anyway. (By the way, I think such items are required to be stamped or engraved with something that identifies them as “Montana Made”, for example.)

So, if I’m a Montana resident and I buy a pistol, rifle, rifle-scope, etc., that was manufactured in Montana, and I do not take it across state lines, the U.S. Federal government has no jurisdiction over its use or registration thereof. (Unless a Federal crime is committed with it, of course.) In other words, as long as I retain it in-state (or, intrastate), it isn’t an interstate matter, so Federal law and Federal regulation do not apply. This would include things like the federally-mandated NICS checks; Brady background checks; NFA taxes, bans and NFA databases — not to mention Federal “assault weapons” bans. You get the idea.

The basis for the law is threefold. Obviously, it appeals to the Second Amendment by reasserting the right to “keep and bear arms”. And, it points to the Ninth & Tenth Amendments, reaffirming that the Federal government has no authority in areas not specifically given it by the Constitution. Those rights remain with the people and the States. The original FFA (aka the “Montana Made” law) also refers to the Montana State constitution, which prevents the government from interfering with the Second Amendment rights of individual Montana citizens. But, the central point of contention is really that of State sovereignty, with a focus on intrastate vs. interstate commerce. Gun ownership/regulation is just the particular application being used. Talk about a hot-button issue!

Well, needless to say, the Big Government types and the gun-control advocates in Washington and elsewhere don’t like this one bit. The Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) has not been shy about making its displeasure known. In fact, it has sent letters to gun dealers in Montana and Tennessee, telling them that by following the FFA, they proceed at their own risk. An excerpt from the Tennessee letter firmly asserts that

because the Act conflicts with Federal firearms laws and regulations, Federal law supercedes the Act, and all provisions of the Gun Control Act and the National Firearms Act, and their corresponding regulations, continue to apply.”

They then go on to remind the recipients what those requirements are. The tone is quite civil and not explicitly threatening, but, reading between the lines, one can see that the Federal government does not recognize State sovereign gun laws and the BATFE will not hesitate to arrest anyone who sells a firearm without complying with Federal requirements. (I haven’t read of anyone risking a challenge, yet; and, no doubt it would be a long and expensive legal battle, too.)

I am certainly sympathetic to the idea of having a central, national database of gun owners. In theory, it could help law enforcement in their investigations and prosecutions. Unfortunately, almost all gun-related crimes are done by criminals, who are not likely to go through official channels to obtain a firearm. More to the point, the real danger comes when the government is no longer working in the best interests of the people and decides they are more easily controlled once they are disarmed. A nationwide database would certainly make this easier to accomplish. (Note: I’m not an alarmist on this issue. Not yet. But it is a concern.)

Bill of Rights

Bill of Rights

Regarding the State sovereignty issue, I believe the reasoning for the FFA legislation is sound and the States should not be forced to comply with all the relevant Federal laws & regulations. Some of them might have merit, though, and be worth considering implementing at a State level. But, if measures are taken to restrict one’s own State firearm industry within its borders, I don’t see how the Interstate Commerce Clause can logically apply.

As for Montana, Tennessee, and the rest, I say more power to them. If they have the time & money to push this sort of legislation and defend it in the Federal courts, that’s great. State sovereignty is a very important issue, as is every citizen’s right to arm and defend himself, his family, and his property against anyone (including the government) that would threaten their welfare or try to take it/them away unlawfully. On both counts, we need brave lawmakers, executives, lawyers, & judges to make sure such rights are not stolen, suddenly or subtly, by either the ignorant or the dangerous, and to reclaim those rights that have already been taken.

For more, check out these two posts:

Was Jesus a Sword Toting Conspiracy Theorist?

Commerce, Jurisdiction, and Firearms Freedom Acts