Why Machine Guns and Marijuana Are More Alike Than You Think

by Alan Brooks

Last Friday the 9th Circuit Court of Appeals delivered a ruling in the case of the Montana Shooting Sports Association v. Holder. The case centers around the 2009 Montana Firearms Freedom Act which essentially says that firearms, accessories and ammunition made in Montana and sold only in Montana are not subject to ATF regulations, the National Firearms Act of 1934, the Gun Control Act of 1968 or any other federal regulation. Since Montana passed its legislation, seven other states have passed their own versions . . .

The legal rationale behind the act is that Congress derives its authority to regulate firearms from Article 1, Section 8, Clause 3 of the U.S. Constitution, known as “the Interstate Commerce Clause.” The clause says that Congress shall have the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” So the thinking goes that if the commerce is not occurring “among the several States” then Congress can’t regulate it. Sounds simple right?

Well it turns out it’s not quite so straight-forward. Until 1941, the Supreme Court had ruled that manufacturing specifically was not commerce and did not fall under the regulatory authority of the Federal Government and that, in general, the Tenth Amendment to the Constitution prohibited the Feds from regulating anything that didn’t cross state lines. They even went so far as to say (in Hammer v. Dagenheart, 1918 ) that:

if Congress can thus regulate matters entrusted to local authority by prohibition of the movement of commodities in interstate commerce, all freedom of commerce will be at an end, and the power of the states over local matters may be eliminated, and thus our system of government be practically destroyed.

That happened in 1941 with the case of the U.S. v. Darby Lumber Co. where a 5-4 majority of justices ruled that:

the Tenth Amendment which provides: ‘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’. The amendment states but a truism that all is retained which has not been surrendered.

With that dismissal of 152 years of legal precedent, the way was cleared for a slew of federal regulations regarding every aspect of business. Over the next 54 years the “retained” rights of the States shrank while the list of those “surrendered” to federal authority grew one law at a time. The last bastion of the (now largely symbolic) Tenth Amendment were those things made strictly for personal use and never sold.

Enter medical marijuana. In 1996 California legalized medical marijuana in direct contravention of federal law and in 2002 the DEA raided the California home of Diane Monson and Angel Raich and destroyed several marijuana plants that were being grown for (what Monson and Raich claim were) medicinal purposes. The two sued, arguing (among other things) that they were protected by the Tenth Amendment because the marijuana they were growing was strictly for personal medical use and not for sale or distribution and, therefore, not subject to regulation under the Commerce Clause.

The case (which became Gonzales v. Raich) went to the Supreme Court in 2005 where the court ruled that, while the growing of marijuana for personal use was not commerce per se, it could affect prices in the black market for drugs which is both an interstate and international market and thus falls under the authority of federal law. By extension of this ruling, the 9th Circuit Court of Appeals was forced to reverse a 2003 decision that they made in the case of the U.S. v. Stewart, which held that the Commerce Clause could not apply to the home-manufacture of machine guns for personal use.

Which brings us back to the 9th Circuit’s recent ruling in the MSSA v. Holder case. While the court reversed the lower court’s ruling that the plaintiffs lacked legal standing they ultimately dismissed the case based on the precedent set by Gonzales v. Raich and U.S. v. Stewart. Now the MSSA is preparing an appeal to the Supreme Court with the hope of convincing the court to overturn its previous decisions. The implications of a favorable ruling in this case reach far beyond the ability of individuals to avoid $200 tax stamps with 80% lowers and homemade suppressors. It will affect every aspect of federal regulation, business, and state legislation.

National healthcare, internet regulation and privacy, minimum wage laws and Agenda 21 would all be affected by a renewed constraint on congressional authority. If you are interested in supporting the MSSA in their upcoming legal challenge you can learn more and/or donate to their cause on their website.