States’ Rights Update: MA Sues Feds on DOMA; CO on GM; More States for Firearms Freedom

by Phil on 07/8/2009

Over the past few days, some higher-profile topics have become ensnared within the confines of federalism. The first story comes via TenthAmendmentCenter.com, where Massachusetts’ Attorney General Martha Coakley has filed suit against the federal government and its Defense of Marriage Act (DOMA) claiming that the State, per se, has the right to define marriage as it sees fit:

Click here for the full complaint.

Attorney General Martha Coakley’s suit argues that DOMA violates the Tenth Amendment to the United States Constitution, which reserves all powers to the states except those expressly given to the federal government, and it points out that until DOMA’s passage in 1996 states had unchallenged authority to regulate marriage.

It claims DOMA violates the Constitution’s principles of federalism, and it also violates constitutional provisions that prevent the federal government from withholding money to states as a means of forcing them to violate the constitutional rights of their citizens.

The suit asks the court to find DOMA unconstitutional as applied to Massachusetts and to grant an injunction preventing the enforcement of DOMA against Massachusetts.

The suit alleges that not only does the law violate the 10th Amendment to the Constitution, which reserves to the states all powers except those granted to the federal government. It also alleges that the law violates Article 1, Section 8 of the Constitution, which limits the power of Congress to attach conditions to the receipt of federal funds.

The suit states that DOMA, termed “overreaching and discriminatory,” interferes with the state’s “sovereign authority to define and regulate marriage.”

“We view all married persons equally,” Coakley said at a press conference today.

The judicial branch sees Congress’ ability to attach strings to funds as quite broad, and if the definition of marriage is linked to that enumerated power and is not seen as commandeering the state legislative or executive branches, it would likely not be seen by them as a violation Tenth Amendment.

Associate Justice Sandra Day O’Connor wrote quite an historical commentary in the majority opinion in New York v. US, the key Supreme Court case that many States have incorporated within their 10th Amendment resolutions. The premise was that the federal government cannot directly “commandeer” the States to accept or reject federal legislation.

FaceTheState.com reports that Colorado’s Attorney General John Suthers won an argument concerning whether or not States can “maintain [their] regulatory authority over the agreements New GM has with its dealerships“…

We last caught up with Colorado Attorney General John Suthers, a Republican, on our weekend radio program that aired June 20. He had filed a petition with the federal bankruptcy court arguing the “prepackaged bankruptcy” of General Motors, as proposed, trampled on states’ rights to regulate auto dealerships. Monday, he announced the court sided with him and dozens of attorneys general nationwide in a recent ruling.

“This concession will allow the state of Colorado to maintain its regulatory authority over the agreements New GM has with its dealerships,” Suthers said.

The blog TheWhig cites a Washington Times article that provides a general update on what’s been happening with the Firearms Freedom Act around the nation:

A new Montana gun law puts the state at the forefront of a national bid to restore states’ rights by attacking up to a century of federal court decisions on Washington’s power.

Two other states – Alaska and Texas – have had favorable votes on laws similar to Montana’s, declaring that guns that stay within the state are none of the feds’ business. More than a dozen others are considering such laws, and more-general declarations of state sovereignty have been introduced this year in more than 30 legislatures.

The federal courts may not respond well to these laws in the short term, but backers who acknowledge this say that regardless, they intend for the laws to change the political landscape in the long term. They hope these state laws will undercut the legitimacy of contrary federal law – as has happened with medicinal marijuana – and even push federal courts to bend with the popular wind.

“What’s going on is that people all over the country have decided, ‘Enough is enough,’ ” said Kevin Gutzman, a professor at Western Connecticut State University and the author of “Who Killed the Constitution?” “This is supposed to be a federal system, but instead Congress seems to think it can legislate anything it wants.”

In May, Montana became the first state to approve the Firearms Freedom Act, which declares that guns manufactured and sold in the Big Sky State to buyers who plan to keep the weapons within the state are exempt from federal gun regulations.

According to the act’s supporters, if guns bearing a “Made in Montana” stamp remain in Montana, then federal rules such as background checks,registration and dealer licensing no longer apply. But court cases have interpreted the U.S. Constitution’s Interstate Commerce Clause as covering anything that might affect interstate commerce – which in practice means just about anything.

So if this law sounds ripe for a court challenge, well, that’s the idea, said Gary Marbut, president of the Montana Sports Shooting Association, the state’s largest pro-gun group.

“The Interstate Commerce Clause has grown and grown until the government asserts authority over everything under the sun,” said Mr. Marbut, who wrote the original firearms legislation.

“How much water you have in your toilet. Almost all environmental laws. Maybe one-third of all federal regulations are asserted under the Commerce Clause.”

Even if the Montana law, or similar bills already being pushed in other states, don’t produce a blockbuster decision overturning a century’s worth of economic rulings, supporters hope it will change political conversation and make federal intrusion on state matters politically unpalatable.
The federal government, said Mr. Marbut, “is a creation of the states, and the states need to get their creation on a leash.”

In that sense, the law is only nominally about guns. “Guns are the object, but states’ rights are the subject,” he said.

Even so, gun-control groups have blasted the law. Paul Helmke, president of the Brady Campaign to Prevent Gun Violence, called it “wrong from theconstitutional side and wrong from the policy side.”

But it’s catching on with state legislatures. Five states have introduced their own versions of the law, while lawmakers in a dozen more are considering it.

In Alaska, the state House approved the Alaska Firearms Freedom Act by a vote of 32-7, but the Legislature adjourned before the bill could reach the Senate. In Texas, a similar bill sponsored by state Rep. Leo Berman won approval in the Public Safety Committee on a 5-0 vote, but failed to reach the floor before adjournment on June 1. The three other states to see bills introduced were Minnesota, South Carolina and Tennessee. Lawmakers in Georgia, Missouri, Ohio, Oklahoma, Louisiana, Kansas, Arizona, Colorado, Wyoming, Utah, Idaho and Washington are considering an in-state gun law of this sort.

Passing the Montana law was just the first step. Supporters are now working to ignite the legal battle by choosing a manufacturer willing to construct a “Made in Montana” line of guns, then contacting the Bureau of Alcohol, Tobacco, Firearms and Explosives to see whether the firearms can be sold without dealer licensing.

If the bureau declares such sales illegal, backers say they plan to pull the trigger on the lawsuit.
That’s when the entire enterprise threatens to collapse. Even supporters say it’s a long shot that a federal court will overturn a century of legal history to rein in the Interstate Commerce Clause.
The Rehnquist court issued two decisions that limited congressional power under the Commerce Clause, though both decisions concerned law-enforcement matters.

The 1995 U.S. v. Lopez ruling struck down the Gun-Free School Zones Act, which made it a federal crime to have a gun near a school, and the Violence Against Women Act was nixed in the 2000 case of U.S. v. Morrison. The court decided that neither school crime nor sex-based violence qualified as interstate commerce.

But the “local only” approach hasn’t been as successful.

As far back as 1905 (Swift v. U.S.), the Supreme Court upheld federal regulations of meat dealers who bought and sold locally as permitted by the Interstate Commerce Clause. In Wickard v. Filburn in 1942, the justices ruled that even wheat that never left the farm – the farmer fed his cattle with it – affected the interstate wheat trade and thus was subject to federal regulation – in that case, production quotas.

One design flaw with the Montana Firearms Freedom Act is its focus on firearms, said Mr. Helmke, of the Brady Campaign. There aren’t that many federal laws regulating guns, apart from those requiring dealer licensing, banning machine guns and prohibiting felons from buying firearms, he said.

Mr. Helmke added that the courts were unlikely to side with Montana, describing the Interstate Commerce Clause as “settled federal law.”

“In effect, Montana’s trying to turn back the clock to pre-New Deal times, or even pre-Civil War times,” Mr. Helmke said.

That may be true, but Mr. Marbut thinks public opinion in favor of such a change is growing. He pointed to the popularity of state sovereignty laws, which have been introduced this year in more than 30 states. And where the public goes, the judiciary often follows.

“The courts do pay attention to something they call ‘emerging consensus.’ It means the natives are getting more than restless,” he said. “Hopefully, because there are so many clones of the Montana Firearms Freedom Act being introduced in other states, the courts will recognize this as an emerging consensus.”

Article here.

In fact, Nordyke v. King, a case that has set precedent on how the right to keep and bear arms applies to State and local levels, could play a part in the potential upcoming judicial showdown over the 2nd Amendment and federalism.

See the “State Initiatives” link, top of site, for more information on State-based initiatives.

-Phil

There are 6 comments in this article:

  1. 07/9/2009Civis naturaliter natus says:

    The idea that wheat used on one’s own farm, affects interstate commerce and thus can be federally recognized, is philosophically absurd…!

    How does the commercial market get affected, when there are no consequences; because the farmer who considers growing wheat to fead his animals, instead of bying it, could just as well sell the animals, and not grow it, as grow it and sell them. So, the farmer could argue that the Feds desire to control the hypothetical wheat market on the interstate level, wants to control his decision making process, not only his wheat, and that violates his rights as a free citizen, a property holder, and entrepeneur in a free market.

  2. 07/9/2009Bob says:

    The Tennessee Firearms Freedom Act became law on June 19th, after the governor failed to sign the bill into law.

    http://wapp.capitol.tn.gov/apps/BillInfo/Default.aspx?BillNumber=hb1796

  3. 07/9/2009Civis naturaliter natus says:

    Phil,

    As I’ve said before, I admire your patience with the Obots, but for your own good health, the advancement of your blog, and the utility of your honest readers, why not establish some criteria whereby you ban permanently some of the posters here, who do not even attempt to reason?

    I found on my many blogs, that a strict ban of the dishonest argumentator, culls out hundreds of hours of useless debate and nit picking…

  4. 07/10/2009Phil says:

    Civis naturaliter natus,

    Phil,

    As I’ve said before, I admire your patience with the Obots, but for your own good health, the advancement of your blog, and the utility of your honest readers, why not establish some criteria whereby you ban permanently some of the posters here, who do not even attempt to reason?

    I found on my many blogs, that a strict ban of the dishonest argumentator, culls out hundreds of hours of useless debate and nit picking…

    1. What you currently see has been brought down to a dull roar after threats had already been issued some time ago;

    2. I don’t censor the “useless debate and nit picking” that is in my specific direction; I would encourage you and other commenters that if you want certain discussions to cease and desist, don’t respond.

    -Phil

  5. 07/10/2009Roderick says:

    MA sues Feds??? Kerchner sues Feds??? MA sues Feds??? Kerchner sues Feds??? Get the point. If Kerchner doesn’t have standing neither does MA. So why is MA wasting their time sueing? Why is Kerchner wasting his time sueing. Come on folks I know you’ll are smarter than this. Immunity??? Wait don’t the Feds have immunity from MA???

  6. 07/14/2009libertymann says:

    In the farmer & wheat case, the justice essentially argued: if we let one farmer do it, others will do it and there goes our price fixing, oops, control. “Clearly”, the justice erred. It’s never too late to correct a bad decision made by an earlier court.

    What about Marbury v Madison wherein the Supreme Court announced it had the power of Judicial Review over the Congress? In one of the Federalist Papers, a Framer states that he expects the several sovereign states would “erect barriers” against an overreaching Federal government. He didn’t mention the Supreme Court.

    “Emerging consensus” really means people are waking up to our legacy of natural, unalienable rights as sovereign people. Nothing new is emerging. We’ve just been negligent in guarding our liberty.