Camp Lone Star – Federal Gun Laws and the Commerce clause
Outpost of Freedom
August 20, 2015
The entire “Felon in Possession” federal law is hinged on Commerce. From its inception, it has been enforced by taxation, since the Bureau of Alcohol, Tobacco, and Firearms is an agency of the U. S. Treasury department.
We are dealing specifically with 18 U.S. Code 922 (g):
(g) It shall be unlawful for any person – [conditions omitted]
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
We are going to delve into the purpose of commerce, as defined by the Constitution. We can also wonder why someone charged with “felon in possession” is not taxed; instead, he is determined to be a criminal. We will start with some historical background.
Role of the Federalist Papers
James Madison, fourth president (1809-1817), and recognized as the “Father of the Constitution”, for his role in drafting as well as arguing for ratification, is the best single source for an understanding of the intent and purpose of the Constitution and the government created by that Constitution.
The Federalist Papers, being the arguments that led to ratification of the Constitution, have been used in legal justification to support, and to overturn, laws enacted by Congress. After all, the intent of the Constitution, as laid out in the Federalist Papers is what the American people, through their respective state conventions, relied upon as the original intent of the Framers, and therefore, must be what the Constitution truly means, wherever any ambiguity exists.
There are many hundreds of U.S. Supreme Court decisions where the Federalist Papers were cited in arguing and/or deciding decisions before that court. If the Federalist Papers, those words by Hamilton, Jay, and especially Madison, supported a decision, it was so supported. If they were inconsistent with an enactment, then the enactment was overturned.
An example of the strength of original intent might be demonstrated with an example. In United States v. Lopez, 514 U.S. 549 (1995), Lopez argued that the federal law regarding “gun free school zones” was outside of the scope of authority granted to Congress by the commerce clause, “The Congress shall have Power…[t]o regulate Commerce… among the several States…” (Art. I, §8, cl. 3). Chief Justice Rehnquist delivered the opinion of the Court, and in so doing, said [at 457-458]:
The Constitution creates a Federal Government of enumerated powers. As James Madison wrote, “[t]he powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” The Federalist No. 45. This constitutionally mandated division of authority was adopted by the Framers to ensure protection of our fundamental liberties. Just as the separation and independence of the coordinate branches of the Federal Government serves to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.
The decision removed from enforcement the federal gun free school zone law, as a determination of that nature resided solely with the state, by those powers not granted to the federal government, rather, retained by the state government.
In another instance, Alden et al. v. Maine, 527 U.S. 706 (1999), this case dealt with the sovereignty of a American state government, Justice Kennedy delivered the opinion of the Court:
… Any doubt regarding the constitutional role of the States as sovereign entities is removed by the Tenth Amendment, which, like the other provisions of the Bill of Rights, was enacted to allay lingering concerns about the extent of the national power. The Amendment confirms the promise implicit in the original document: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U. S. Const., Amdt. 10.
The federal system established by our Constitution preserves the sovereign status of the States in two ways. First, it reserves to them a substantial portion of the Nation’s primary sovereignty, together with the dignity and essential attributes inhering in that status. The States “form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority than the general authority is subject to them, within its own sphere.” The Federalist No. 39.
Second, even as to matters within the competence of the National Government, the constitutional design secures the founding generation’s rejection of “the concept of a central government that would act upon and through the States” in favor of “a system in which the State and Federal Governments would exercise concurrent authority over the people–who were, in Hamilton’s words, `the only proper objects of government.'” (quoting The Federalist No. 15). In this the founders achieved a deliberate departure from the Articles of Confederation: Experience under the Articles had “exploded on all hands” the “practicality of making laws, with coercive sanctions, for the States as political bodies.” The Federalist No. 20.
Perez v. Mortgage Bankers Association (2015), with Justice Thomas, concurring in the judgment, said:
When a party properly brings a case or controversy to an Article III court, that court is called upon to exercise the “judicial Power of the United States.” Art. III, §1. For the reasons I explain in this section, the judicial power, as originally understood, requires a court to exercise its independent judgment in interpreting and expounding upon the laws.
Those who ratified the Constitution knew that legal texts would often contain ambiguities. As James Madison explained, “All new laws, though penned with the greatest technical skill and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal . . . .” The Federalist No. 37.
One of the key elements of the Federalists’ arguments in support of the allocation of power to make binding interpretations of the law was that Article III judges would exercise independent judgment. Although “judicial independence” is often discussed in terms of independence from external threats, the Framers understood the concept to also require independence from the “internal threat” of “human will.” The Federalist No. 78, “The judiciary . . . may truly be said to have neither FORCE nor WILL but merely judgment . . . “. Independent judgment required judges to decide cases in accordance with the law of the land, not in accordance with pressures placed upon them through either internal or external sources. Internal sources might include personal biases, while external sources might include pressure from the political branches, the public, or other interested parties.
Necessary and Proper
Article I, §8, clause 18:
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
This clause is worthy of additional consideration. What may be necessary and proper for the function, and the fulfillment of the duties, of the federal government is, without question, within the realm of the intent. That comes under the portion which states, “the foregoing Powers”, meaning those enumeration within Article I, §8.
Next, we have to consider, “all other Powers vested by this Constitution in the Government”. Here, we can consider whether a “Power” exists, and whether, without express authority, the government can properly assert that “Power”. For example, Article II, §2 provides that the President is “Commander in Chief of the Army and Navy of the United States”. clearly, laws enacted to facilitate that function are within the scope of the intent of clause 18. So, too, would be laws that set forth the operation of other functions within the various “Departments or Officers”, though the existence of those Departments and Officers must, by their creation, be consistent with the Constitution.
Now, here comes a stickler. The Preamble to the Constitution provides a description of the purpose of the Constitution and the government it created:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
Let’s look at some adjectives (Definitions from Webster’s 1828 Dictionary, the words as understood by the Founders):
establish: To set and fix firmly or unalterably; to settle permanently. To found permanently; to erect and fix or settle; as, to establish a colony or an empire.
insure: To make sure or secure.
provide: To procure beforehand; to get, collect or make ready for future use; to prepare.
promote: To forward; to advance; to contribute to the growth, enlargement or excellence of any thing valuable, as, to promote learning, knowledge, virtue or religion.
secure: Free from fear or apprehension of danger.
(1) To set or fix firmly or unalterably a form of Justice; (2) To make sure that there is domestic Tranquility; (3) To procure beforehand, ready for future use, the common defence; (4) To forward (encourage) the general Welfare; and, (5) To make free from fear or apprehension, the Blessings of Liberty.
Of these, two are somewhat ambiguous, unless the on text is understood. How can enactments, for example, make sure that there is domestic Tranquility? Well, that Tranquility might best be described as the absence of government intrusion into our lives, so, it is absence of action rather than action that can produce the intended result. The other is to promote the general Welfare. It doesn’t say provide, therefore, providing the general welfare is not what was intended. Further, it says “general”, meaning creating a wholesome setting for the people to provide for their own welfare. These two, then, would, perhaps, require laws limiting activities of government that would be detrimental to the purposes.
The other three are rather straightforward. Establishing a judicial system that is focused on justice, rather than unconstitutional law. Providing for military protect for the country, should the need arise — it does say “defence”. And, to enact any law that assures that our posterity will enjoy the same “Blessings of Liberty that we intended to enjoy.
So, of these, “necessary and proper” must adhere to the achievement of the objectives. Anything contrary thereto would be unnecessary and improper.
Returning to “Departments and Officers”, the creation of Departments and the Officers within those departments would have to be within the confines of the defining powers of government. For example, if the Bureau of Alcohol, Tobacco, and Firearms, is created under the authority of excise taxes, then it is a tax collection agency, and its sole purpose is the collection of those taxes. Would a law be necessary and proper if it made a criminal of someone who chose to not pay the tax, or would it be limited to collection, not by force, rather, by judicial process, of any taxes owed?
This is the fine line of what the Constitution means. It is left to proper judicial interpretation, and that interpretation was made in the Supreme Court decisions cited above.
The Lopez case determined that the commerce clause was limited in its reach, and that it was encroaching on the rights and jurisdiction of the states to determine whether someone could possess a firearm within a specified distance from a school.
Alden reinforces the authority of the states to retain their sovereignty, if there is not a specific “necessary and proper” aspect to a federal law enacted by the Congress, or a Rule administered by an Administrative Agency.
The Perez case demonstrates the necessity of the judges and justices to interpret the original intent of a legislative act, as intended by the wording in the law, as well as to weigh the constitutionality, the “necessary and proper” aspect of an enactment of Congress, or a Rule promulgated by an agency..
The Commerce Clause
In Federalist Papers 41-46, he provides a thorough explanation of the three branches, their separation, and their powers and limitations. He also points out that there is a distinction between “necessary and proper” (Art. I, §8, cl. 18) and what is “unnecessary or improper”.
As he continues through these six Papers, he raises two questions:
1. Whether any part of the powers transferred to the general government be unnecessary or improper?
2. Whether the entire mass of them be dangerous to the portion of jurisdiction left in the several States?
And, into doing, he provides insight into:
[T]he several powers conferred on the government of the Union; and that this may be the more conveniently done they may be reduced into different classes as they relate to the following different objects:
1. Security against foreign danger;
2. Regulation of the intercourse with foreign nations;
3. Maintenance of harmony and proper intercourse among the States;
4. Certain miscellaneous objects of general utility;
5. Restraint of the States from certain injurious acts;
6. Provisions for giving due efficacy to all these powers.
Now, the one that we are concerned with is that dealing with is number 3:
[The Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
In particular, the second, “among the several States”, which he defined, above, as “3. Maintenance of harmony and proper intercourse among the States“.
One of the defects of the Articles of Confederation was that it had no means whereby it could control what one state did with regard to another state, as far as duties or taxes. If a ship came from a foreign port with goods to be delivered to a couple of different ports, in different states, it had an unfair impact on other than the first state visited. For example, if a ship came into New York, and had goods for New Jersey, New York would impose a duty on all of the goods aboard. Then the ship would cross the river to New Jersey, having already paid duties in New York, increasing the price of the goods offloaded in New Jersey.
Vermont and the already created Northwest Territories, being land bound, might be charged anything for any goods transported across any of the coastal states, to get to a shipping port — adding additional costs to those goods. Whereas the coastal states would have not additional charges on their goods.
It was with this problem, already existing, that lead to the inclusion of the commerce clause. Or, to put it in the words of James Madison (FP 42):
The defect of power in the existing Confederacy to regulate the commerce between its several members, is in the number of those which have been clearly pointed out by experience. To the proofs and remarks which former papers have brought into view on this subject, it may be added that without this supplemental provision, the great and essential power of regulating foreign commerce would have been incomplete and ineffectual. A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former. We may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquility.
Now, to extend the ambiguous wording of the clause into means of enacting laws the step upon the toes, or the rights, of the States to determine what is acceptable within their sovereign lands, as, without a doubt, and abuse of the intent of that clause. It violates the very concept of a Union, making the federal government master of all, and the states, masters of naught, at least to the extent that the federal government intends to extend its influence.
So, when that provision for commerce becomes a uniform tax imposed by the federal government (Gun Control Act of 1934), rather than the intended purpose on not letting one state take advantage of another. Then the tax is removed and the act becomes a crime, (as discussed in Massey & The Clash of Laws) which is in opposition to the Texas Constitution and Statutes, we must, if the judiciary will not question what the intent is, and whether the federal “felon in possession” law is within that intent.
As was seen in the court decisions cited above, the Supreme Court does recognize the intent based upon the writings of Hamilton, Jay, and Madison. So, in the name of justice, should the lower court rule, with the wisdom intended, in favor of the Constitution? That is what Madison told us was intended. Thus leaving any challenge to seek an interpretation contrary to the Constitution as a burden on the government, rather than imprison someone, leaving the obligation on this victim of government oppression, the loss of his job, his family, and facing starting over, with the stigma of “convict” attached to his name, if the Supreme Court eventually rules that the law, as interpreted by the government agents, is in error, with regard to any authority granted by the Constitution? Is that not his proper role?