PDA

View Full Version : WSJ July 14, 2011: A Gun Activist Takes Aim at U.S. Regulatory Power


johnny_22
07-14-2011, 6:06 AM
Wall Street Journal has a nearly full page article on Gary Marbut's effort to limit the Interstate Commerce Clause.

http://online.wsj.com/article/SB10001424052702304584404576442440490097046.html

tiki
07-14-2011, 6:34 AM
Mr. Marbut wants the court to declare that the Wickard case "was wrongly decided, and the whole trail of cases that rely on it were wrongly decided."


This is what worries me about Heller and McDonald and Obama's Supreme Court Nominations. How long before the balance of the court is tipped and some case comes along where they decide that Heller was wrongly decided?

rjh4758
07-14-2011, 6:35 AM
I think I want to move to Montana.

lgm118icbm
07-14-2011, 6:40 AM
Somebody needs to put the government back in its place. It is good to see that the fight is happening on more than one front.

Paladin
07-14-2011, 6:44 AM
This is what worries me about Heller and McDonald and Obama's Supreme Court Nominations. How long before the balance of the court is tipped and some case comes along where they decide that Heller was wrongly decided?
That is why politicians, politics, and political activism remain critical -- and always will. The political process determines who serves in federal courts: they are nominated by the President and confirmed by the Senate.

IMHO, since Heller, our CGN activism has weakened. Too many CGNers seem to think once we get the right SCOTUS judicial precedent (Shall Issue, no more AW or hicap or whatever bans), we can all abandon the political arena and just go home and enjoy our RKBA. Sorry, while the tide may turn, the price of liberty is eternal vigilance against the antis. That means keep making those calls, sending those emails, introducing newbies to shooting, and donating to the cause (both legal and political sides of the fight).

uyoga
07-14-2011, 7:01 AM
"Eternal Vigilance" means exactly what it says.

There will always be those with the power, real or perceived, who will attempt to destroy or diminish human and civil rights guaranteed by the constitution.

We must be there at the beginning of any intrusion, and prevent, it or fight it all the way. There, really, is no middle ground,

Briancnelson
07-14-2011, 7:17 AM
Oddly enough this is why the lefties are currently spending many column inches trying to convince Ginsberg toretire from the Supreme Court so Obama can nominate a younger replacement. They fear Obama will get the boot and then Ginsberg will die, and we'll get another conservative justice, so we won't have to rely on Kennedy.

The grabbers are playing the long game and they want your rights. You have to stay involved and you cannot back off, ever.

yellowfin
07-14-2011, 7:32 AM
Somebody needs to put the government back in its place. It is good to see that the fight is happening on more than one front.+1. Wickard is a disgraceful sham that is long overdue to be put in its grave. It really blows my mind that anyone who practices law and/or sits on a bench can endorse and support Wickard with any shred of human conscience. They know it's wrong yet they continue to "just follow[ing] orders."

Write Winger
07-14-2011, 7:52 AM
Ginsberg will retire between November 2012 and January 2013...

Californio
07-14-2011, 8:42 AM
The issue really has given birth to Central Planning. I would like to see Wickard and the web of bad law that it spawned reversed for the sake of the Republic. The Commerce Clause has become a carte blanch for Congress to do anything it wants.

mdimeo
07-14-2011, 8:55 AM
Here's the odds I'd give, if I were a betting man:
NFA/GCA overturned entirely: 0%
NFA/GCA overturned for in-state manufacture and sales: 10%
SCOTUS refuses to overturn NFA/GCA: 10%
Lower court refuses to overturn NFA/GCA, and SCOTUS doesn't grant cert: 80%.

Zak
07-14-2011, 8:55 AM
That was actually a very enlightening read.

The court ruled Congress could regulate almost any activity that might interfere with national policy.

IANAL, but it seems to me that Congress could regulate anything under this ruling. I could make the case that a local business would bring customers from out-of-state, thereby affecting interstate commerce.

The federal Bureau of Alcohol, Tobacco, Firearms and Explosives was less enthusiastic. It wrote to Mr. Marbut saying: "Federal law supersedes the [Montana Firearms Freedom] Act, and all provisions of the Gun Control Act and the National Firearms Act" remain in force.

Just another reason to hate the BATFE.

Mr. Marbut expects to fall short at the appeals court, as well. If he gets to the Supreme Court and loses there, he is readying a Plan B. He calls it "Sheriffs First," a bill that would authorize Montana sheriffs to arrest federal lawmen who enter their counties without permission.

Now this is brilliant :D

BobB35
07-14-2011, 9:04 AM
+1. Wickard is a disgraceful sham that is long overdue to be put in its grave. It really blows my mind that anyone who practices law and/or sits on a bench can endorse and support Wickard with any shred of human conscience. They know it's wrong yet they continue to "just follow[ing] orders."

Wickard only passed the supreme court because FDR used Chicago style politics to get his way. A few years before this case he threatened to pack the court with Justices if he didn't get his way. You want to talk about a travesty of justice. This case if any should be shot down. If it is though there goes the entire Federal Govt. Department of Education - Gone, Department of Energy - Gone, Department of you name it - Gone.....all that will be left is Defense, State, Justice and a much reduced department of interior. They may grandfather in something with SS but I don't know how. This would be a great win for the citizens, bad for Govt.

Gray Peterson
07-14-2011, 9:17 AM
That is why politicians, politics, and political activism remain critical -- and always will. The political process determines who serves in federal courts: they are nominated by the President and confirmed by the Senate.

IMHO, since Heller, our CGN activism has weakened. Too many CGNers seem to think once we get the right SCOTUS judicial precedent (Shall Issue, no more AW or hicap or whatever bans), we can all abandon the political arena and just go home and enjoy our RKBA. Sorry, while the tide may turn, the price of liberty is eternal vigilance against the antis. That means keep making those calls, sending those emails, introducing newbies to shooting, and donating to the cause (both legal and political sides of the fight).

I thoroughly disagree for numerous reasons. Maybe you're seeing something different, but from what I've seen, Heller and McDonald have increased our activism significantly.

Wherryj
07-14-2011, 9:50 AM
I think I want to move to Montana.

Even if he wins his case, I think that I want to move to Montana. I doubt that those of us in CA will benefit much from taking the federal government out of the 2A. Placing the 2A in the hands of the politicians in this state is like leaving the fox with the keys to the hen house.

dustoff31
07-14-2011, 10:14 AM
Here's the odds I'd give, if I were a betting man:
NFA/GCA overturned entirely: 0%
NFA/GCA overturned for in-state manufacture and sales: 10%
SCOTUS refuses to overturn NFA/GCA: 10%
Lower court refuses to overturn NFA/GCA, and SCOTUS doesn't grant cert: 80%.

This case isn't about the NFA or the GCA. Or even the 2d or 10th amendments. It's all about the commerce clause.

If the Wickard ruling can be overturned, all manner of Federal intrusion into the states internal affairs may very well start unravelling.

BlindRacer
07-14-2011, 10:14 AM
The issue really has given birth to Central Planning. I would like to see Wickard and the web of bad law that it spawned reversed for the sake of the Republic. The Commerce Clause has become a carte blanch for Congress to do anything it wants.

Exactly!

Hypothetically extreme scenario... because I get oxygen from the air when I breath, that I'm reducing the sales of out of state oxygen suppliers. So my breathing should be fined/taxed.

Maybe not so extreme, is something going back to the core of the original case... Growing your own vegetable garden. Reduces products puchased, so it needs to be fined/taxed.


Wickard only passed the supreme court because FDR used Chicago style politics to get his way. A few years before this case he threatened to pack the court with Justices if he didn't get his way. You want to talk about a travesty of justice. This case if any should be shot down. If it is though there goes the entire Federal Govt. Department of Education - Gone, Department of Energy - Gone, Department of you name it - Gone.....all that will be left is Defense, State, Justice and a much reduced department of interior. They may grandfather in something with SS but I don't know how. This would be a great win for the citizens, bad for Govt.

This would be an amazing win to get the Govn't back to what it was supposed to be...Defense, State, and Justice. There was never supposed to be anything controlling the actions of American citizens. That was the whole point of America in the first place...to get out from under the thumb of England, so that we could do what we wanted to do.

As long as my actions don't affect someone else's life, liberty, or persuit of happiness, then I should be free to do ANYTHING!

dantodd
07-14-2011, 10:21 AM
Ginsberg will retire between November 2012 and January 2013...

I don't see congress voting on a replacement if Obama loses and THEN Ginsberg retires. It shouldn't be hard to hold out a couple months.

ke6guj
07-14-2011, 10:31 AM
Ginsberg will retire between November 2012 and January 2013...

go right ahead. There wouldn't be enough time for confirmation hearings to be done before a new President was in Office.

FullMetalJacket
07-14-2011, 10:42 AM
I think it's absolutely scandalous that Congress' limited power to regulate interstate commerce has been warped into the ability to stick the federal nose into every matter that might somehow affect interstate commerce, an incredibly low standard. A limited power thus becomes a recipe for unlimited power. If this is to remain valid, the whole Constitution should be reduced to the Commerce Clause.

Incidentally, Obamacare is riding on the same justification. The law's provision for compelling people to buy health insurance is said to be justified by the Commerce Clause, to wit: a person who chooses NOT to buy health insurance is affecting interstate commerce and, thus, subject to regulation.

BlindRacer
07-14-2011, 11:33 AM
Incidentally, Obamacare is riding on the same justification. The law's provision for compelling people to buy health insurance is said to be justified by the Commerce Clause, to wit: a person who chooses NOT to buy health insurance is affecting interstate commerce and, thus, subject to regulation.

And thus, anything I choose to, or not to do, buy, say, participate in, associate with, etc., will affect commerce whether positively or negatively in some way. Buy choosing to walk, I affect the motor industry, oil industry, plastics industry, audio industry, etc. I'd also be affecting the shoe industry, the sunscreen industry, hat industry, etc. They could creep into anything with this distorted interpretation.

GoodRevrnd
07-14-2011, 1:30 PM
That was a very interesting article. Undoing Wickard precedent and everything that relied on it would create a massive mess with some insanely positive benefits and some insanely negative ones.

I have a more moderate interpretation of this situation and I think this is the key.
He invoked an 1824 case in which Chief Justice John Marshall said federal interstate-commerce power doesn't stop at state boundaries but reaches any activity that "may affect other States." Thus, even local, noncommercial activity "may still…be reached by Congress if it exerts a substantial economic effect on interstate commerce," he wrote.
I can see the merits of this view but I'm not completely on board. The sticker here is the "substantial economic effect." It seems the federal government is all too willing to declare *anything* as having substantial economic effect, whether it does or not on an individual level. This is what makes me disagree with the original decision on the Wickard case even if you were to consider the rest of the principals sound.

Honestly though, I'm not 100% sure what to make of this and am going to have to ponder on it more.

Bhobbs
07-14-2011, 1:38 PM
I doubt he will win. Ruling in his favor would undo way too many laws even if it is the right way to rule.

jl123
07-14-2011, 3:51 PM
I doubt he will win. Ruling in his favor would undo way too many laws even if it is the right way to rule.

I agree. Same reason the Supreme court went with the NRA's argument against Chicago instead of Gura.

Gura, just like this guy, was right, but the Supreme Court doesn't want to burn the government to the ground basically, whether it is right or not.

ilkhan
07-14-2011, 8:06 PM
I thoroughly disagree for numerous reasons. Maybe you're seeing something different, but from what I've seen, Heller and McDonald have increased our activism significantly.
They restored some hope for sanity from the courts, but I don't know how much they've done for activism.

berto
07-14-2011, 8:43 PM
Ginsberg will retire between November 2012 and January 2013...

If she retires so that Obama can choose her replacement she'll retire this summer or next summer. 11/12-1/13 is simply too late given the stakes and how the game is played.

Window_Seat
07-14-2011, 9:21 PM
Justice Ginsburg (at 78) has said that she will not retire "anytime soon" (knock knock) sometime ago in another article... I seriously doubt she would retire between 11/06/2012 and 01/20/2013.
She said she felt good and reiterated her vow to remain on the bench at least to match the tenure of Justice Louis Brandeis, who retired at age 82 in 1939, after almost 23 years. "I'm going to stay as long as I can do the job," she said. "I probably will at least equal him. But you have to take it year by year."

Justice Ginsburg reflects on term, leadership role (http://www.usatoday.com/news/washington/judicial/2011-07-01-supreme-court-ginsburg_n.htm)

Erik.

gunsmith
07-14-2011, 9:43 PM
pretty awesome article, we can pray he is successful, I remember the gloomy days during/after the Clinton admin, I was told by everyone there would never be a SCOTUS victory for the 2A.

We have to help Montana/Marbut any way we can

Paladin
07-14-2011, 9:44 PM
I thoroughly disagree for numerous reasons. Maybe you're seeing something different, but from what I've seen, Heller and McDonald have increased our activism significantly.

I'm talking about political activism, specifically, staying on top of EVERY anti bill as it progresses thru committees and chambers in Sacto and burning up those phone lines. I'm NOT talking about the Sunshine Initiative, suing Sheriffs in fed courts, etc.

IMO, back when, IIRC, we blocked EVERY anti bill and got Katrina Emergency Powers limitation passed, that was our high water mark for political activism. After that, more and more people seemed to be just watching Parker/Heller, and ignoring Sacto. Ever since then, it seems like fewer CGNers are burning up the lines. Ironically, back when Katrina passed, we had, IIRC, about half the membership we do now. (The last UOC ban attempt seemed to have revived us temporarily.)

Bill W. or Paul Payne probably have a better handle on this. But until they post, this is still MHO.

wildhawker
07-14-2011, 9:55 PM
Political activism in 2A is better now by far, not just on volume but on efficacy. Many of the things you mention carries no water in Sacto. The Leg has evolved, and so has our positioning in it. Until the composition of the Leg changes quite a bit, we're left to deal with the reality of losing most of the battles in Sacto in spite of our best efforts.

Also, it's not wise to ask people to lose too often.

-Brandon

I'm talking about political activism, specifically, staying on top of EVERY anti bill as it progresses thru committees and chambers in Sacto and burning up those phone lines. I'm NOT talking about the Sunshine Initiative, suing Sheriffs in fed courts, etc.

IMO, back when, IIRC, we blocked EVERY anti bill and got Katrina Emergency Powers limitation passed, that was our high water mark for political activism. After that, more and more people seemed to be just watching Parker/Heller, and ignoring Sacto. Ever since then, it seems like fewer CGNers are burning up the lines. Ironically, back when Katrina passed, we had, IIRC, about half the membership we do now. (The last UOC ban attempt seemed to have revived us temporarily.)

Bill W. or Paul Payne probably have a better handle on this. But until they post, this is still MHO.

Paladin
07-14-2011, 10:06 PM
Political activism in 2A is better now by far, not just on volume but on efficacy. Many of the things you mention carries no water in Sacto. The Leg has evolved, and so has our positioning in it. Until the composition of the Leg changes quite a bit, we're left to deal with the reality of losing most of the battles in Sacto in spite of our best efforts.

Also, it's not wise to ask people to lose too often.

-BrandonWe're "better now by far, not just on volume but on efficacy" and "it's not wise to ask people to lose too often"? Why are we losing now if we're so much better than back when we stopped the antis cold and got something big for earthquake country (Emergency Powers limitation)? :confused:

If making those calls "carries no water in Sacto," why are we asked to do them? To just waste our time???

Maybe I should ask my trusted adviser his opinion. . . .

ieuBkWHfCuc

wildhawker
07-14-2011, 10:07 PM
Better where we need to be, and more conscientious at applying force.

We're "better now by far, not just on volume but on efficacy" and "it's not wise to ask people to lose too often"? :confused:

Maybe I should ask my trusted adviser his opinion. . . .

Paladin
07-14-2011, 10:23 PM
It will be interesting to see how the new method for redistricting shakes things up in 2012.

wildhawker
07-14-2011, 11:12 PM
It will be interesting to see how the new method for redistricting shakes things up in 2012.

May very well be bad for us.

kcbrown
07-14-2011, 11:58 PM
May very well be bad for us.

Considering how bad it already is, it's hard to see how it could get much worse.

But then, I've enough wisdom to know that it can always get worse...

markm
07-15-2011, 4:26 AM
I thoroughly disagree for numerous reasons. Maybe you're seeing something different, but from what I've seen, Heller and McDonald have increased our activism significantly.

Hello Gray,

You and I have tangled on a different forum. I was critical of your style.

This is a really good post; concise, not argumentative, nor hollier-than-thow.

Also, I agree with your opinion on this point. +1

markm

markm
07-15-2011, 4:28 AM
Considering how bad it already is, it's hard to see how it could get much worse.

But then, I've enough wisdom to know that it can always get worse...

kcbrown,

As you have opined, the downside will be minimal. The upside could be huge!

markm

Al Norris
07-15-2011, 5:43 AM
Back in 2009, the Idaho legislature passed a Memorandum that declared Idaho as sovereign in all matters not delegated to the Federal Government, as understood at the time the compact with Idaho and the US was adopted in 1890.

In 2010, the Idaho legislature pass House Bill 589 and was signed into law. The Idaho Firearms Freedom Act was codified as Title 18, Chapter 33, section 15A (http://www.legislature.idaho.gov/idstat/Title18/T18CH33SECT18-3315A.htm).

Most people have heard nothing about this. No fanfare. No big deal...

Some few folks are quite busy making rifles and handguns and suppressors. These folks do not hold FFL's, and therefore are not caught up in the Feds regulatory schemes, by way of Federal licensing.

So far, so good. No one has been arrested let alone charged. We'll see what happens in the future.

Mulay El Raisuli
07-15-2011, 7:09 AM
This is what worries me about Heller and McDonald and Obama's Supreme Court Nominations. How long before the balance of the court is tipped and some case comes along where they decide that Heller was wrongly decided?


While a legitimate fear, its not a big fear. After all, Slaughterhouse is regarded by just about everyone, left AND right, as being a complete pile of dung (legally speaking). NO ONE thinks it was rightly decided. Books have been written about just how awful this case is.

Yet, SCOTUS still refuses to overturn this POS. Its not like they didn't have the perfect opportunity in McDonald. Its not like they haven't had opportunities to do so. But, to overturn directly a previous SCOTUS ruling is something they are loath to do. INAL, but I think the last time they did that was in 1954 when they overturned Plessy v. Ferguson with Brown v. Board of Education. IOW, it takes a lot to get that done. Short of SCOTUS being 'packed' with extremists like Ginsberg, the legal logic that decided Heller & McDonald will prevail.

Of course, 'packing' is always possible & I could be wrong.


We're "better now by far, not just on volume but on efficacy" and "it's not wise to ask people to lose too often"? Why are we losing now if we're so much better than back when we stopped the antis cold and got something big for earthquake country (Emergency Powers limitation)? :confused:

If making those calls "carries no water in Sacto," why are we asked to do them? To just waste our time???

Maybe I should ask my trusted adviser his opinion. . . .

ieuBkWHfCuc


Not taking sides on this aspect of the debate, but this is FUNNY!


Even if he wins his case, I think that I want to move to Montana. I doubt that those of us in CA will benefit much from taking the federal government out of the 2A. Placing the 2A in the hands of the politicians in this state is like leaving the fox with the keys to the hen house.


The difference here is that the 2nd enjoys MUCH stronger protection at the Federal level. It being an enumerated Right, after all. I.E. I'm quite happy with the Feds having the authority here.


The Raisuli

Reductio
07-15-2011, 11:52 PM
IANAL, but it seems to me that Congress could regulate anything under this ruling. I could make the case that a local business would bring customers from out-of-state, thereby affecting interstate commerce.


Exactly. The basic argument is that intrastate commerce (within the same state) affects interstate commerce, and therefore can be regulated under the interstate commerce clause. Actually, the original case was in regards to a farmer growing things above quota for his own farm.... morons. :mad: