Posts Tagged ‘states rights’

Today we have a guest column from my friend Jamie Davis of the Jacksonville, FL, chapter of the Tenth Amendment Center. Take it away, Jamie…


Much has been said about the attack on the family and Judeo-Christian values in America.  Social conservatives are understandably vexed over the abandonment of social mores and core values that have served America well for hundreds of years.  In an effort to resist the moral and social decline some have shifted their attention to influencing federal legislators to pass or strengthen laws to stop the moral decay.  Others seek to focus voter’s attention on which federal legislators are most likely to vote to protect family values.  Citizens have been conditioned to look to the federal government to solve the hot issues of our day like formalizing the definition of marriage on a national level, fighting the war on drugs, and ensuring that the internet and various media are safe for viewing and listening for our nation’s children.

While America of the 1700’s likely didn’t deal with the issues we face and could not have foreseen them, they faced significant risk of moral decay from the issues of their time. Gambling and prostitution were vices that were prevalent even then and their presence threatened to undermine the moral fabric of a young and fragile society.


Captain John Smith

Captain John Smith (courtesy of

“Gambling quickly became a problem in Virginia. Captain John Smith complained about men “devoted only to idleness.” Gambling can be highly addictive and often correlates with illegal activity, broken families, unemployment, homelessness, and results in annual legal and social costs   which are significant.   In light of the presence of gambling and the strong Judeo-Christian ethic of our founders, some may find it surprising that gambling is not referenced in the constitution or early federal laws. But there were laws about gambling in early America, state laws.


Prostitution, the oldest profession which often in reality resembles cold blooded sexual slavery, is often associated with child kidnapping, broken marriages and venereal diseases all of which have significant societal costs. So how did the founders handle this dangerous and immoral practice? The constitution was and is completely silent on the issue.

Prostitution was not an offense in either English or American common law, and, prior to World War I, although being a prostitute was not an offense, prostitution was generally regulated as a specific sort of vagrancy. When prostitutes were punished as sexual deviants, it was under laws against adultery or fornication or for being ‘common nightwalkers’–women who strolled the streets at night for immoral purposes. It was not until 1917 in Massachusetts, however, that a prostitute could be punished for prostitution.”

Why did the founders not constrain the people’s wicked tendencies by federal law?

Could not the federal government have used the general welfare clause or the commerce clause to regulate prostitution or gambling?  The founders well understood the dangers of man’s tendency to be corrupted by power so they were opposed to giving central government too much authority.

Aware of the tendency of power to degenerate into abuse, the worthies of our country have secured its independence by the establishment of a Constitution and form of government for our nation, calculated to prevent as well as to correct abuse.” — Thomas Jefferson to Washington Tammany Society, 1809.

The founders framed a Federal government with authority to govern regarding specifically enumerated powers. They also placed checks on those powers by reserving all other powers to the states and the people so the Federal Government would not grow into a tyranny that intruded into all manner of its citizen’s private lives.

Thomas Jefferson

Thomas Jefferson (portrait by C.W. Peale, 1791)

I consider the foundation of the Constitution as laid on this ground: That “all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people.” [10th Amendment] To take a single step beyond the boundaries thus specifically drawn around the powers of Congress is to take possession of a boundless field of power, no longer susceptible of any definition.”  — Thomas Jefferson: National Bank Opinion, 1791.

Do social conservatives really want the Federal Government to possess boundless power?

A federal government powerful enough to outlaw or endorse gay marriage is also powerful enough to outlaw home-schooling and preaching against homosexuality. Our founders believed that the wicked tendencies of the few in power are more to be feared than the wicked tendencies of the people. This is why they worked so hard to establish enumerated powers, the bill of rights, and checks and balances.  If the Federal Government is allowed to assume unconstitutional powers and is allowed to define its own scope, what is to stop it from one day declaring Sharia Law? When Social Conservatives advocate for federal laws beyond the enumerated powers they inadvertently seek to enlarge the scope of the Federal Government’s power.

State and Local Law is still a very effective way to preserve the moral fabric of society.

The people, via City, County, and State governments are empowered by the constitution on every matter not delegated to the Federal Government. This creates tremendous opportunities for experimentation and free choice. Would you like to live in an area where alcohol is not sold? No problem; 1 out of every 9 counties in the United States is dry as of 2010. These communities typically have lower teenage drinking rates and lower domestic violence rates, demonstrating that the moral fabric of societies can still be affected locally by legislation.

The United States is a wonderfully diverse region of states with varied cultures, values, and goals. When the Federal Government is constrained to stick to its enumerated powers, one can vote with their feet as to what type of state, county, city one wants to live in. Out of control Federal Government is supposed to be checked by the states and the people.

The U.S. Federal Government is out of control, recently over-ruling the sovereign state of California on a ruling about gay marriage. The fact it was a social conservative “victory” that was over-ruled is not the issue we should be concerned about. We should be concerned that the Federal Government is acting beyond its constitutional limits.  On a Federal level, social conservatives should cling to, respect, and vote the tenth amendment. We should not be bamboozled by candidates for federal office that promise to fulfill our wish list.

Consider Charlie Crist or John Thrasher from Florida where each, when it served their interest in the polls, simply changed their respective positions on the issue of abortion to galvanize certain voters behind them. Voters who put them into power, it is fair to say, have been bamboozled.

How much better would it be to have more officials in office like Arizona governor Jan Brewer who will stand up to Washington and reject unconstitutional over-reach. Having been reminded of their tenth amendment rights, 22 states are working on Arizona style legislation and over 20 States are currently working to opt their citizens out of Obama-care mandates.

Now more than ever, we need officials in Washington and in our state capitals who will keep their oath to uphold and defend the constitution. Social Conservatives likewise have taken an oath (on their voter registration cards) to uphold and defend the constitution. This means that we should care more about having candidates who will uphold the constitution than having candidates who will advance our agenda.

Don’t work against your own interest in the voting booth.  Get informed about your candidates by visiting

In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.”   — Thomas Jefferson

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.

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.

Copyright © 2010 by

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