by: Jeff Matthews
State efforts to reclaim their jurisdiction are great. But in some respects, the states are still showing signs of apprehension of, and/or undue deference to, the federal government.
Various states have passed legislation, collectively referred to as “Firearms Freedom Acts.” Though they may vary in the details, a common thread in these acts seems to be that a state considers a firearm to be within its jurisdiction if it is manufactured within the state.
The obvious reason for this common thread is that if a gun entered from another state, the argument that it falls within federal jurisdiction under the Interstate Commerce Clause can be invoked. However, such an argument would be incorrect.
Congress has the power to regulate interstate commerce. Just because a gun crosses state lines does not mean it did so as a part of commerce. Many people move from state to state and take their belongings, including guns, with them. This is not commerce.
Secondly, there is a temporal issue raised by assuming any gun that has come from another state is within the ambit of federal regulatory jurisdiction. As stated, the federal government is empowered to regulate interstate commerce. But what if a gun entered a state as part of interstate trade in say, 1980, and here it is 2010? The gun is no longer the subject of any act of interstate commerce and has not been for 30 years. It is specious, at best, for anyone to believe that any product that ever was the subject of interstate commerce forever remains the subject of federal regulatory control.
Jurisprudence has evolved from asserting federal jurisdiction over “commerce among the several states,” as intended, to anything “affecting commerce among the several states.” There are legitimate reasons for the desire of the federal government to try to extend the reach of its jurisdiction in this manner. There are many scenarios in which purely intrastate activities can thwart the ability of Congress to exert its authority over interstate commerce. The possibilities are so many that even the founders might admit that intrastate activities can effectively frustrate the original intent to confer on Congress the power to regulate interstate commerce.
However, just because the federal government might experience frustration in wielding the power conferred on it does not mean the federal government can unilaterally change the construct of its power. In such cases, amendment is the process which was designed to remedy such problems.
What the federal government has done is to effectively re-write the Constitution to expand its authority and dispense with its burden to show it is operating within the legitimate confines of its authority.