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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.

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    • As an avid shooter and 1911 enthusiast, and a guy who really would prefer not to see people who smoke pot get locked in a cage, I thought I would really love this film. But in my humble opinion, it goes from pro-weed to “annyoingly” pro-weed -and has lame music videos throughout. A copy without the music in it might come across to me totally different. I’m not being all “Get off my lawn” with that either, I grew up on my share of hip hop. It’s just annoying.
      The medical patients were damn touching, and I 100% support medical marijuana. And the gun stuff was solid. I really liked the way they talked about firearms in terms of citizens and gov’t. I admit as a weed tolerant older guy that doesn’t partake himself, I am still somewhat uncomfortable having them attached. But the whole point is that freedom is freedom, I suppose.

      • I think it’s useful to realize that the documentary was intended to reach a much wider audience than anyone, or any group of us, here at TTAG.

        I refuse to nitpick it, because I realize they wanted to reach as many fence-sitters, gun-snatcher supporters, and weed-banners as humanly possible. Yes, it has flaws. So do every one of us, and everyone it was intended to reach. To name but a few.

        The secondary aim was to show gun owners and weed-users that they have a great commonality of purpose, and to institute a dialogue between us. I can only praise it in that regard, and I thank the filmmakers for making it available. Anyone here who can spare the time should view it. HELL, you should view it even if you don’t have the time.

        We may have differences, but we all have the same aim: LIBERTY.
        I’ll try and remember that. You should, too.

  1. “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.”

    I didnt realize that the government regulated the black market. I thought that was kinda what made it black. Using the argument that a black market, that is not regulated, and should not exist at all, grants the government regulatory athority over something that might be sold on that market is a ridiculous hypocrisy.

    • If the government has the right to prohibit drugs, resting on its interstate commerce power, then it essentially has the power to create a black market (because while these laws regulate supply they do not regulate demand). Think of prohibition as just a very large tax on manufacturing. Ergo, it has the the power to regulate a market that allegedly should not even exist.

      • One is the causality, largely, for the other.

        So we should not allow laws, that go against a very vast majority, such as pro-hibition, only serve to create the markets of illegality ans not elominate legitimate markets.

        Exactly the reason they were unconstitutional in the first place.

        When a law results in what was once perfectly legal, meaning constitutionaly upheld, its rendering illegal, is therefore illegal.

      • You’re mixing up your terminology here. Whether the government has a “right” to do anything is not relevant – the only question is whether the government has the power to do anything. Obviously they do, and therefore they “may.”

        Sorry of I’ve rained on your libertarian parade , but speaking of government “rights” is bullshit. The government has no rights. It does however have as much power as it can get away with exercising.

    • Correct on so many levels. I busted a guy with 28 pounds of methamphetamine for sale. The state deferred prosecution to the Feds. (Cause he was selling out of state). DEA, deferred to the IRS who put him away for tax evasion ala Al Capone. Seems he didn’t report millions in ill gotten gains from the sale of illegal drugs.
      So yes, the Feds condone and expect to profit from the black market.

      • I find it funny, no sad, that tax evasion is our “go to” lock em away law for a Nation that hated the idea of debtor’s prisons and later slavery…

      • Seems to me the DEA would not defer a criminal who was busted with 28 lbs. of meth(sales, trafficking and possession) to the IRS for tax evasion unless they didn’t have a case. I had an old friend who took the wrong turn in life and was caught transporting 5-6 lbs. from Illinois to the Twin Cities in 2002 and his outdate from Rochester Federal prison is 2019, 17 years minimum sentence for less than 10lbs. How does your dept. or the DEA not get this guy on the actual trafficking charges and instead charge him with tax evasion. Sounds strange to me being there is no defense when caught with amounts of meth that large.
        So is the claim, which I believe is true, that our legal system somewhat supports, controls and makes money off the black market, do they make more money from this specific bust because he is charged with tax evasion, or would the system make the same amount of money if your dept. or the DEA would of just charged and sentenced him for the actual trafficking charges without any IRS involvement?

        As for J.G., the person you replied to, finding the system a ridiculous hypocrisy, I find J.G. being surprised that our system is ridiculously hypocritical, ridiculous.

        • “The wrong turn in life” does not include committing a felony. Argue all you like about whether the war on drugs is proper or legitimate or constitutional, knowingly committing a felony is not an “Oops. my bad.”

          Unjust? Not relevant. Illegal? Hell, yes.

          • “If a law is unjust, a man is not only right to disobey it, he is obligated to do so.” – Thomas Jefferson

            How’s THAT, obedient little law-book thumper?

    • A decision like that is why I hate every lawyer from the lowest ambulance chaser up to the supreme 9 …… the total absence of common sense remains in the law. Of coarse since a lot of lawyers are leftist it makes perfect sense that common sense has left the building. The best upside to a revolution would hopefully be an elimination of the the politicians and closely followed by the lawyers.

      • “Common sense”? That ain’t in it. You most helpful thing everyone should grasp is THEY’RE CRIMINALS. Everything they do is about eliminating competing criminals!

      • I won’t try to tell you that your experience with lawyers is wrong or incorrect, however after working for quite a few different law firms, sized from 4 employees to 1300 employees, that has not been my experience at all. The majority seemed very much supportive of the constitution and all of our rights guaranteed under it.

    • If you take a look at your IRS forms when you file it says roughly, “be sure to include any illicit income.” It is more detailed than that, but that is the essence of it… they expect you to declare your ill-gotten gains and they have put organized crime bosses behind bars this way.

      • Not that I have any illicit income, but what happens if a choose to pay taxes on all the money I have earned through drug my empire? Do they care where the money comes from, or just that I “pay my fair share”? Is there a declaration form to tell them how I got the money that waives my right against self incrimination? Do I then have to make the mules give me reciepts for expenses? Maybe I could start a trust. What if I donate to charity? Come on folks we have become a nation of laws that is devoid of justice. Its disgusting.

      • not only that, there is detailed tax code on what expenses criminal enterprises can deduct as business expenses. You know, bullets, bribes, etc. its crazy.

      • If a felon does not have to register his gun as it is a violation of his 5th amendment rights, how can he be required to declare income?

        • You are right, disclosure is voluntary. But proving tax evasion is a lot easier than finding an illegal gun. Take your assets and valuables, add up the value, compare it to income. Where’d all that extra money come from? If the DEA searches your house, your valuables are in plain sight. Money is useless if you dont spend it, and creature comforts are useless if they are not nearby. When they come, they may not find your stash or guns, but 42 carats across 4girlfriends and a Mercedes SUV says you have not been giving your uncle a cut. Uncle Sam is the Don’s Don, so just pay the man will you?

        • I believe the ruling was you can’t add an unregistered gun charge to a convicted felon because they had no way to comply with the law without violating their 5th amendment rights. Likewise, I can’t pay taxes on ill-gotten gains without violating my 5th amendment right, so you can’t charge me for not paying them.

    • Youhave not heard of drug tax stamps. Illegal but if you make it you better purchase a tax stamp and attach it to your “inventory”. Purchase of the stamp/stamps (tax) is from the state that makes your project illegal.

    • I’ll go post of the day, as it effectively points out what we all (shoulda) known since Nixon and this propaganda-cash-power-grab BS started.

      Drugs are only a problem for a select few, the percentage of whom changes almost not at all, regardless of the legality of the product. The only thing that does change is government oversight, meddling, profiteering, and punishing of those who engage in what is rightfully (good or bad) their personal right to choose.

    • I had the exact same thought. Although i guess when you’re wanting your way you’ll come up with anything to get it.

  2. Unfortunately I do not believe The supreme court will never over rule the ability of the feds to fully control firearms in any way they so choose. The only way to get that freedom back is to ………

    • …go to DC and catch the Supremes tokin’ with the head of the Choom Gang in his PA Ave. white pad. Strictly medicinal, you understand.

      Or maybe one of the three-letter agencies (I’m looking at you, NSA) have already done that.

      • Blackmailed into compliance, yes sir, you got it.

        “Choom gang”!!! Another keyboard could have bought the dust, but FOILED!! I got it covered from here on! Very hip reference, sir, to our would-be President-for-Life!

  3. The government has the power to regulate interstate commerce, but the right to keep and bear arms shall not be infringed. Guns have a special carved out place in the constitution, amongst other commerce. It’s a train wreck of ginormous proportions with the three favorite subjects among the conservatives – guns, interstate commerce, and states rights. ouch.

  4. John Roberts will once again betray small government, big citizens cause again, though I do applaud you throwing Agenda 21 in there, an understanding of Agenda 21 needs to go mainstream, the more its thrown out there as same level of credibility as anything else, the sooner it’ll gain more traction form the average Joe.

    • Everybody here needs to research UN Agenda 21 (as in “implemented totally by 2021”).

      You too, jwm, buddy-boy!

      • Firstly, William, I ain’t your buddy. Secondly, I’ll admit agenda 21 hasn’t been high on my list of studies. From what i recall it’s voluntary and since it isn’t a treaty it doesn’t carry the weight of law. At anytime the US government can turn it’s back on 21.

        Just a reminder William. I agreed to ignore you as long as you don’t go past full retard and into Full William Burke. You invoked my name in this. Not I yours.

        And yes, myself and my very conservative wife support legal weed and machine guns.

        Addresses and co-ordinates.

        • Interesting statement JWM, I’ve disagreed with you here more than once but increasingly I like your style. I’m heavily conservative myself, though with a few glaring exceptions. One of those is I’m anti drug prohibition. I don’t use drugs personally, and I’ve seen how badly they can damage a person and a family. That said, pot doesn’t seem to be as harmful as alcohol, or any more effectively prohibited. I’m another conservative who’s all for legalization of both pot and machine guns.

        • Ardent, my wife is much more conservative than I. Basically I believe in the rights of the constitution being individual rights. And those rights belong to all of us, regardless of race, religion etc.

          I just happen to focus on the 2a first as that’s my pet amendment.

  5. Since ‘well regulated’ means what we all know it means, why doesn’t that apply here? I’m not an etymologist, but it would seem like if we applied meaning as it is for the 2nd Amendment to this that it would suggest that the Federal Government has the power to ‘facilitate’ commerce between nations and the states.

    I could be way off here, but it makes sense to me. I guess it just depends on what your definition of ‘is’ is.

    • “Since ‘well regulated’ means what we all know it means”…

      That does NOT mean what “we all know it means”. The word regulate does not have the same definition now as it did during the writing of the second amendment. Very few people know or understand this fact.

      Here’s an explanation:

  6. “… the Supreme Court in 2005 … 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.”

    That is about the most ridiculous statement that I have ever heard. There is no way that our Supreme Court actually came up with such a ruling of their own free will. Someone or some group had to have put the screws to the Justices.

    Think about it. If you had a million dollars to spare, that much cash can buy the “talent” necessary to assassinate anyone, I don’t care who the desired target is. Last time I checked, our Supreme Court Justices were not wearing kevlar, driving in armored vehicles, nor surrounded with platoons of special forces personnel 24/7. What would you do if you were a Supreme Court Justice and someone worth hundreds of millions of dollars told you what would happen — and meant it — if you ruled on a case against their wishes?

    • “surrounded with platoons”

      I humbly submit the more appropriate term would be, “phalanxes”.

    • Nobody has to hold a gun to their head, the SCOTUS is no different than any other court, they are politically motivated and have been given the power to make public policy without worry of an election.

      Read about the Warren Court.

      The can makeup whatever BS they want. Look what they did with Obamacare.

      Look at Justice Ginsberg. She does not give a damn about the law, she only cares about social justice.

      • On my darker days, I’ve pictured justices receiving blank envelopes with pictures of grandchildren taken through rifle scopes, or pictures of them doing unsavory things in unsavory places. This thought crossed my mind when Roberts made his bizarre and twisted ruling on Obama care (particularly after some of what he said during the hearings).

        Still possible of course, but probably not needed to explain their behavior. The beltway is increasingly becoming a weird bubble. An obscenely affluent, out-of-touch fantasy land isolated from much of the rest of the country. I think the justices may very well be caught up in this too, even though they are supposed to be insulated from public pressure.

    • The ruling that actually set this up and created the whole mess that is the standing judicial interpretation of the Commerce Clause is Wickard v. Filburn (1942):

      “But even if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as ‘direct’ or ‘indirect.’

      Home-grown wheat in this sense competes with wheat in commerce. The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon. This record leaves us in no doubt that Congress may properly have considered that wheat consumed on the farm where grown, if wholly outside the scheme of regulation, would have a substantial effect in defeating and obstructing its purpose to stimulate trade therein at increased prices”

  7. Are rights can not be regulated, that’s why they are rights. Remember Feinstein comparing guns to child porn? Well I say her logic would claim that child porn is illegal except for military and law enforcement and federal agencies, warped,twisted, evil and sick mind she has. Take that bitch!

  8. the Commerce Cause has been the black eye of this nation since the New Deal.

    when i leave the house, i turn off the lights, therefore affecting electricity prices around the nation (supply and demand), so the feds can regulate when i leave my house.

    ad naseum.

    • I believe the Commerce Clause need not be a totally bad think; it’s just that criminals, believing they possess the right to bend the law to their own intent, are always prone to misuse it.

      • Originally, Commerce Clause was put into place to prevent trade wars between states whereby they would put tariffs on each others’ goods or block their importation outright (which happened under Articles of Confederation). In other words, the goal was to maximize economic freedom by making the entire US a free trade zone within the country borders. That is a good thing and worth keeping.

        What we need is an amendment that rewords the Commerce Clause in such a way as to make this goal explicit. In other words, it should only explicitly give the feds the power to intervene in cases where the states are stifling commerce with other states, but not to stifle commerce themselves.

    • That is one interesting take on the subject Thomas. . . at first I dismissed it, then I rethought it, then I realized it was apropos with a modification. If growing a plant or making a machine in my house for my use may be governed by the commerce clause then it would seem reasonable that when I switched the lights on and off would be also governable.

      The only place I know of where people reside but may not control the lights is a prison, which is what this country seems to want to become, one giant open air prison.

  9. The Federal judiciary comes up with all kinds of hocus-pocus rulings to extend the unconstitutional powers of the Federal government. The states and we the People have the final say in what is and what is not Constitutional.

  10. how about wickard v filburn where it doesn’t even have to be commercial for the commerce clause to apply


      Yes, good point. I came here mostly to say that. A farmer growing grain for his own livestock, so it never left the farm. The Court argued that his use of the grain indirectly affected commerce, since he wasn’t buying the grain needed to feed his livestock elsewhere. Another of the worst rulings in the history of the Court, which contributed to this situation we have today in which the Feds have virtually unlimited authority to regulate any economic activity.

      I hope this MSSA case goes well, but I’m not holding my breath.

      • Yeah, when I read the description of the Monson & Raich case, Wickard v. Filburn is what immediately came to mind.

        If you take the “black” and “international” stuff out of the description above, you get:

        “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 market for drugs which is an interstate market and thus falls under the authority of federal law.”

        Replace “marijuana” and “drugs” with “wheat” and this IS Wickard v. Filburn.

  11. 2/3rds vote by the states to eliminate ALL federal regulations of firearms, so as to once again have a realization of “, Shall not be infringed.”, would put this whole issue of he-said-she- said to rest once and for all.

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