Editorial: The States Strike Back

Last week, Governor Rick Perry (R-TX) fired a warning shot across the federal government's bow with his polite reminder that Texas could always secede from the Union. He also endorsed a resolution affirming the Tenth Amendment that has gained traction in several states, increasing the public momentum in favor of returning power to the states.

And now, one state is offering a bill that would seek to undo an older judicial doctrine dating back to the New Deal—in the case Wickard v. Filburn of 1942—to which constitutional scholars date the modern origin of unlimited government in America. That decision cemented the “intrastate commerce” doctrine that “constitutionalized” any federal law regulating commerce within a state—as opposed to commerce among the several states. In Men in Black, Mark Levin, notes that “for the next fifty years, the Supreme Court used the commerce clause as legal justification to uphold federal intrusion into ‘just about anything.'”

And since then, there has been no limit really to what the federal government has regulated. Guns. Energy. Health Care. And on down the line. Nothing has been spared from the federal onslaught. But that may be coming to an end.

In Montana, Governor Brian Schweitzer, a Democrat, recently signed HB 246, a bill that affirms the Tenth, Ninth, and Second Amendments, as well as its own state constitutional protections of the right to keep and bear arms. It also cites the general understanding of the Second Amendment at the time Montana entered the Union: “The second amendment to the United States constitution reserves to the people the right to keep and bear arms as that right was understood at the time that Montana was admitted to statehood in 1889, and the guaranty of the right is a matter of contract between the state and people of Montana and the United States as of the time that the compact with the United States was agreed upon and adopted by Montana and the United States in 1889.”

The bill itself exempts any “personal firearm, a firearm accessory, or ammunition that is manufactured commercially or privately in Montana and that remains within the borders of Montana” from any “federal law or federal regulation, including registration, under the authority of Congress to regulate interstate commerce.”

This is a courageous act by yet another state to stand against an increasingly oppressive federal regime. It is a legal strategy that ought to be emulated by states across the Union, to undo the critically flawed activist doctrine of “intrastate commerce,” and any others that violate powers otherwise reserved to the states and the people under the Tenth Amendment.

The primacy of states in the federal Union was once a bedrock principle that guided the founding of this nation. It recent years, it has become little more than an arcane theory of government allowed to gather dust for some 67 years. But unless all three branches of the government—including the judiciary—return to federalism, eventually states like Texas may actually invoke their secession clause. And states' rights will be a good idea whose time has come—again.


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