Reality Check for the Commerce Clause

From the Wall Street Journal:

MISSOULA, Mont.—“With a homemade .22-caliber rifle he calls the Montana Buckaroo, Gary Marbut dreams of taking down the federal regulatory state.
Montana passed a law that tries to exempt the state from federal gun regulation. But the law is now before the courts, in a test of states’ rights. WSJ’s Jess Bravin reports.

He’s not planning to fire his gun. Instead, he wants to sell it, free from federal laws requiring him to record transactions, pay license fees and open his business to government inspectors.

For years, Mr. Marbut argued that a wide range of federal laws, not just gun regulations, should be invalid because they were based on an erroneous interpretation of Congress’s constitutional power to regulate interstate commerce. In his corner were a handful of conservative lawyers and academics. Now, with the rise of the tea-party movement, the self-employed shooting-range supplier finds himself leading a movement.

Ten state attorneys general, dozens of elected officials and an array of conservative groups are backing the legal challenge he engineered to get his constitutional theory before the Supreme Court. A federal appeals court in San Francisco is now considering his case.“

Read the rest here

Gary Marbut has a colossal fight on his hands, but it is one I believe he can win. To me the issue lies not in the word “commerce,” but in the word “regulate.” Wikipedia, in its coverage of the commerce clause, is overly concerned with the definition and application of the word “commerce.” (Let’s put aside for now the common-sense definition of the word commerce as pertaining to economic activity only.) In doing so, they (as with many courts in the past) are focusing on the wrong word. The key word in the clause is “regulate.”


What exactly is supreme?

St. George Tucker wrote the first extended, systematic commentary on the Constitution after ratification. View of the Constitution of the United States was published in 1803 and served as an important handbook for American law students, lawyers, judges,  jurists and statesmen  for the first half of the 19th century. The following excerpt explains the “supremacy clause.”

SUPREMACY CLAUSE: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

It may seem extraordinary, that a people jealous of their liberty, and not insensible of the allurement of power, should have entrusted the federal government with such extensive authority as this article conveys: controlling not only the acts of their ordinary legislatures, but their very constitutions, also.


Tenther Radio 07-20-11. Guests, Stewart Rhodes, Derrick Sontag

Please join us for TRX: Tenther Radio on July 20, 2011 right here – listen live by clicking the play button at that time on the right. Join the conversation with your comments and questions by calling (323) 843-6008.

We’re honored to have as the show’s guests, Stewart Rhodes and Derrick Sontag.

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Stewart Rhodes is the founder and Director of Oath Keepers. He served as a U.S. Army paratrooper until disabled in a rough terrain parachuting accident during a night jump. He is a former firearms instructor and former member of Rep. Ron Paul’s DC staff. Stewart currently writes the monthly Enemy at the Gates column for S.W.A.T. Magazine