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Even a blind squirrel finds a nut once in a while. In this case, The Brady Campaign to Prevent Gun Violence is right to label the various “Firearms Freedom Acts” enacted by pro-gun states unconstitutional. The idea that a state can separate itself from federal firearms laws by producing and selling weapons in-state is patently ridiculous. You can no more quarantine guns on a state-by-state basis than you can avocados. Or marijuana. As Brady VP Denis Hennigan explains . . .

There is little doubt that the federal courts will make mincemeat of these “Firearms Freedom” laws. The first ruling came down last week, as a federal magistrate judge in Montana struck down that state’s law. Agreeing with the Brady Center’s brief, the judge found the law flatly unconstitutional under decades-old Supreme Court precedent recognizing federal authority to regulate entirely intrastate activity if exempting that activity would undercut federal regulation of interstate activity. As recently as 2005, a conservative majority of the Supreme Court reaffirmed this precedent by recognizing federal power to prohibit the purely local production and medical use of marijuana authorized by state law . . .

In fact, the contemporary right can legitimately claim “ownership” only of the losing side in the great constitutional debate over federal power vs. states’ rights. Defending our Constitution means defending its specific grant of power to Congress to “regulate Commerce . . . among the several states” and to “make all Laws which shall be necessary and proper” for executing that power. It also means defending the Constitution’s Supremacy Clause, by which federal law “shall be the supreme Law of the Land . . . .” Can there be any more direct expression of contempt for the Supremacy Clause than the premise of the “Firearms Freedom” statutes that individual states have the authority to determine for themselves the extent of federal power?

If only Hennigan’s blog post started and stopped there. If he didn’t attempt to link the Firearms Freedom lunacy to the need for “progressives to stand up to the radical right and proclaim: ‘It’s our Constitution, too!'” The 500 lbs. gorilla in the room: the Second Amendment. Let’s see the Brady Bunch reclaim that one.

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  1. "You can no more quarantine guns on a state-by-state basis than you can avocados." Well, actually . . . all of the FFAs that I have read specify that the firearm in question has to be clearly marked "Manufactured in State", and that the FFA only applies to such weapons as long as they remain in the state. The Fed's entire rationale for their gun laws is the 'interstate commerce' argument, but here they are arguing that they can regualte items which have demonstrably *not* traveled interstate.

  2. It also means defending the Constitution’s Supremacy Clause, by which federal law “shall be the supreme Law of the Land . . . .”
    This does not include the laws that are unconstitutional. Any firearms law that infringes on the right to keep and bear arms is unconstitutional and does not become a legitimate federal law. If we had decent judges, we would see a bunch of laws overturned.

  3. Read the Constitution. The United States was built as a group of States bound by a Federal Government with limited powers. The Federal Government has used the so-called "Interstate Commerce Clause" to expand those powers. If an item is produced and sold in a single State and never leaves that State, then the "Interstate Commerce Clause" is not applicable and the Federal Government has no power to regulate.

    What these States are doing is both legal and Constitiional. They are pushing back on powers the Federal Government has taken.

  4. Drat! If I had only been 10 minutes earlier, I would have beat Robert Chapman to the post, but he was here first and nailed it.

  5. The FFAs are a direct challenge to the lunacy exhibited in the Wickard v. Filburn decision. That case determined that a farmer growing wheat on his own farm for his own use (not one grain of wheat to ever leave the farm) was "interstate commerce" because the farmer might otherwise had to buy wheat on the open market, and that would have affected the price of wheat.

    In effect, that decision (delivered by the Supremes under threat of court-packing by FDR) renders EVERY act that might affect commerce anywhere "interstate commerce".

    And that's the problem. If the Founders had intended the congress to have power over ALL commerce, they would not have bothered to say "interstate" commerce. Under Wickard, there is no such thing as NON interstate commerce.

    If one looks to original intent, it's pretty clear that the Founding Fathers had no intention to grant this sweeping authority to regulate everything. Instead, it was their intention that the feds "regulate" (as in the "well-regulated militia" of the Second Amendment) – that is, to make interstate commerce smooth, regular, free of barriers. Considering a history of states erecting barriers to commerce (state import/export tariffs and regulations for starters), having the feds regulate interstate commerce makes sense. Likewise, in disputes between parties of different states, the feds were intended to be impartial regulators.

    But nothing in Constitutional history indicates that the Framers intended the Commerce Clause to enable control of purely LOCAL or INTRASTATE commerce.

    So on a fundamental level, congress does not have legitimate authority to regulate commerce wholly within a state. Added to that the fact that the Second Amendment is a flat prohibition against interfering with the right to keep and bear arms, and the picture of an over-bearing, illigitimate and unconstitutional federal policy (regulation of firearms) is complete.

  6. Why is it that these laws always state that these exempt guns must stay inside the state? If I buy a Wyoming made firearm in Wyoming while living there as a resident, and then I later move my family to Idaho, then taking that firearm with me to Idaho does not constitute "commerce". That's simply moving me and my belongings to another state. It's absurd to think that I can't take my personal property out of the state without being guilty of violating the so-called interstate commerce laws.



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