Montana Legal

[LWYM425]

This guy is taking an interesting approach... He's questioning federal authority to regulate rather then arguing the meaning behind constitutional verbiage.
Anyone know more about this guy?
Enjoy.


http://online.wsj.com/article/SB10001424052702304584404576442440490097046.html?mod=googlenews_wsj

 

[Frank Ettin]

The debate over the scope and breadth of permissible federal regulation under the Commerce Clause has been going on for a long time in various contexts -- not just related to guns. So far, it doesn't seem anyone, in any context, has had a lot of luck getting the courts to narrow the pretty long standing, broad view of the Commerce Clause.

 

[calaverasslim]

Unfortunately, too much money and politics are gonna doom this case. The supreme court is controlled by politics rather than the law. Case in point? Florida elections, 2000.

 

[GRIZ22]

The supreme court is controlled by politics rather than the law. Case in point? Florida elections, 2000.

Bad example. That was over the Democrats wanting to chan ge the election laws after the elections.

 

[belercous]

I can't imagine how the Montana Firearms Freedom Act could possibly be constituional. There are many SCOTUS cases dealing with the Commerce Clause, none of which could give cover for the Montana law.

 

[Danb1215]

I can't imagine how the Montana Firearms Freedom Act could possibly be constituional. There are many SCOTUS cases dealing with the Commerce Clause, none of which could give cover for the Montana law.

Thats pretty much the point, its more of a declaration than anything. Other states have passed basically the same law, and others that strike the same chord.
http://www.tenthamendmentcenter.com/
10th Amendment
Nullification

 

[yinyangdc]

I can't imagine how the Montana Firearms Freedom Act could possibly be constituional.

I can, by reading the constitution. The supremes don't always use the constitution to make their decisions. If they did we wouldn't have somue justices who are thought of as more constitutionalist than others.

 

[belercous]

I've read the Const. quite a bit myself and studied SCOTUS decisions. Its hard for me to believe SCOTUS would suddenly overturn 75 years of jurisprudence in re the Commerce Clause. The doctrine of Stare Decisis carries a lot of weight with the Court, especially among the conservative wing.

I wasn't aware that some Justices are more "constituionalist" than others. Every opinion I've read (the Court's, concurrences & dissents) have been based upon the Const. I'd be interested to know which opinions have no constitutional basis. (If anyone can think of any, please PM me about this as I've never heard of such a thing)

 

[Gary Slider]

It will be a very difficult for it to be upheld. I like to tell people about a case here in WV where a mother and her boy friend burnt down her house and killed her small children for the insurance money. The Feds tried her under federal law and their reasoning was this: "The electric going into that house traveled in Interstate Commerce so they had jurisdiction.

 

[Danb1215]

Since we're on a gun forum I'll limit my response...
I would say any opinions upholding the 1934 NFA, 1968 GCA, 1986 FOPA, 1994 AWB would have absolutely no constitutional basis. Granted these have not been tested enough at the highest levels.

 

[belercous]

Dan; I can assure you they will past const. muster; in fact they have. The reason SCOTUS hasn't ruled on them (much) is because the lower coursts have usually gotten it right, therefore SCOTUS denies cert. and lets the appellate rulings stand. Appellate rulings have the full force of law unless/until SCOTUS rules.

I understand your beliefs regarding the Const., but they count for nothing. There are only 9 people whose beliefs count, and they all wear long black dresses.

Unless SCOTUS is willing to overturn 75 years of judicial understanding about the Commerce Clause, the M.F.F.A. (and all the other states' analogs) are bound to fail. But, who knows? We've had a very activist S.C. since 2000. Not yet Warren Court activist, but the next closest to it.

 

[Danb1215]

That wasn't really my argument, obviously laws are overturned by courts, and not by the simple English sentences that the courts are supposed to be reading.

You asked which opinions had no constitutional basis, and I replied broadly. I have a copy right here on my desk, where in the constitution is congress given the authority to regulate "arms", which section? Please tell me where it says they can, because I can tell you where it says they can't.

You are right about one thing, their collective opinion is all that matters legally, but when tomorrow they rule that 2 +2 =5 just don't expect me to run out and get a new calculator.

It's tough to decipher tone on the internet and for clarity no part of this response was meant to be mean spirited.

 

[Danb1215]

I'm gonna try to come at this another way to take some of the emotion out of it and knock the issue down to its component parts.

Third Amendment: "No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law."

Hypothetical:

7-19-2011: Congress passes the following (peculiarly brief) bill with no change to the constitution:
"Each house shall quarter one soldier each in peace time if requested by the Department of Defense regardless of the owner's consent"

The bill is immediately signed into law, and is challenged equally quickly. It makes its way through the court system, is argued before the supreme court and they render an opinion. The court decides that based on the power of congress to raise and support armies, the law is constitutional as written.

Is it?


If nothing else this post might give someone else that extra trivia edge now that they know what the third amendment is.

 

[Frank Ettin]

...You asked which opinions had no constitutional basis, and I replied broadly. I have a copy right here on my desk, where in the constitution is congress given the authority to regulate "arms", which section? Please tell me where it says they can, because I can tell you where it says they can't...

While you've got your copy of the Constitution out, you might look at Article III:

Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. .....

Section 2. The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution,.....

...Hypothetical:

7-19-2011: Congress passes the following (peculiarly brief) bill with no change to the constitution:
"Each house shall quarter one soldier each in peace time if requested by the Department of Defense regardless of the owner's consent"

The bill is immediately signed into law, and is challenged equally quickly. It makes its way through the court system, is argued before the supreme court and they render an opinion. The court decides that based on the power of congress to raise and support armies, the law is constitutional as written....

Well let us all know when something that preposterous happens. It's an easy and cheap trick to make up a hypothetical that is outlandish enough to purport to prove even the most outlandish proposition. But in truth, a hypothetical proves nothing.

 

[belercous]

Dan; First off, the bill would be lawful, the law of the land. Just because a bill is signed into law (lawfully enacted=lawful=the prevailing law) does not mean it is constituional.

But, to answer your direct question; Yes. For all practical purposes it would be constitutional. SCOTUS is the final arbiter on the Const., not by law or a constituional grant of power, but by convention & assent. Been that way since 1801 (Marbury v. Madison)

(The 3A has never been challenged in any court. Simply because it was never violated.)

Fiddletown; Actually hypothetical cases are a great teaching method. Extreme scenarios help to clarify legal/constituional points of law. That's why the ACLU likes extreme cases, if we can protect the rights of people on the outer edge of the law, the rest of us have our rights assured. Hypothetical cases are used everyday in law schools in America and every other nation where law is taught as a field of study.

 

[Frank Ettin]

...Fiddletown; Actually hypothetical cases are a great teaching method. Extreme scenarios help to clarify legal/constituional points of law. That's why the ACLU likes extreme cases, if we can protect the rights of people on the outer edge of the law, the rest of us have our rights assured. Hypothetical cases are used everyday in law schools in America and every other nation where law is taught as a field of study.

I agree that hypotheticals have their purposes. They are useful teaching tools. They may be, and are, used very effectively for illustrating concepts or as bases for discussion. But they do not "prove" anything. The fact that a certain hypothetical can be framed does not make it probably, plausible or even possible.

 

[Danb1215]

I don't think the hypothetical I proposed was a cheap trick, I merely took a simple one sentence constitutional protection, suggested a law that directly negated it, and asked if a supreme court decision supporting it was in any way founded in the constitution itself. I merely used the third amendment as it is simple, never challenged, and is just generally not discussed.


Just so we're clear I understand (without having to reread Article 3) that constitutional means legally whatever the SC says it means. The problem is what do you do when their interpretations are entirely political and have nothing to do with the constitution as written? Personally I believe, and you're making the case, that the bill of rights is currently worthless, because no one is willing to honor the words on the page. I'll believe in it when it hops out of the national archives and ends all of the unconstitutional constitutional nonsense going on. If the supreme court decides that "shall not be infringed" actually means "may be infringed sometimes" they either cannot read, or are the worlds fanciest rubber stamp, whether it is legal or not.

 

[Frank Ettin]

I don't think the hypothetical I proposed was a cheap trick, I merely took a simple one sentence constitutional protection, suggested a law that directly negated it, and asked if a supreme court decision supporting it was in any way founded in the constitution itself....

It's a cheap trick because your hypothetical is not plausible.

...Just so we're clear I understand (without having to reread Article 3) that constitutional means legally whatever the SC says it means. The problem is what do you do when their interpretations are entirely political and have nothing to do with the constitution as written? Personally I believe, and you're making the case, that the bill of rights is currently worthless, because no one is willing to honor the words on the page. I'll believe in it when it hops out of the national archives and ends all of the unconstitutional constitutional nonsense going on. If the supreme court decides that "shall not be infringed" actually means "may be infringed sometimes" they either cannot read, or are the worlds fanciest rubber stamp, whether it is legal or not.

Except you're being entirely internally inconsistent, and you're making a bunch of assumptions without any basis.

[1] Yes the Supreme Court rules on whether a law is constitutional or not. How do you jump from there to the assumption that their rulings are political rather than based on the Constitution as written? You are reading the Constitution your way, but that doesn't really count. It's still up to the Supreme Court. And pretty much whenever one side of an issue or another side is disappointed by a Supreme Court ruling, they complain that it was political or not based on the Constitution.

[2] As for the Bill of Rights being worthless, it seems to me the Supreme Court not long ago decided a couple of cases strongly upholding the First Amendment.

[3] And as far as this "not be infringed" business goes, it's well settled in Constitutional Law that constitutionally protected rights my be subject to limited regulation if certain standards are met.

[4] Apparently there's much in the constitutional jurisprudence of the last 200 years of which you disapprove. But that doesn't change anything.

 

[Danb1215]

What have I said that was inconsistent whatsoever? Please, I'd love to clarify. And what assumptions do you object to, I have definitely made some, but unfounded I contest.





Edit: and again I don't see how my hypothetical could be construed as a trick. It was not meant to be a prediction, it was specifically meant to be a nonpartisan, nonpolitical logical what if. It was not meant to be likely, nor does it have to be.

 

[Frank Ettin]

What have I said that was inconsistent whatsoever? Please, I'd love to clarify. And what assumptions do you object to, I have definitely made some, but unfounded I contest.

I've already set it out in my prior post. What you seem to believe the "Constitution as written" say and what the courts believe the Constitution says are apparently very different. The the opinions of the courts trump yours.

 

[azmjs]

Like it or not. The Constitution gives the federal government broad powers to regulate commerce through the interstate commerce clause.

 

[belercous]

Dan; Art III does not grant SCOTUS the right to say what is constituional or not. Nor does any law give them that power. What gives them that power was the Court's own decision, cited above, and the accquiesence of the public since 1801.

Yes, whatever the Court says goes, even if it is a highly partisan decision (see Bush v. Gore, the most partisan SCOTUS decision ever. It violated the Const., state law, and the Court's own precedents). What could be done about an unpopular decision is for the executive branch to not enforce it. This has been done once, by Andy Jackson. His famous quote was "John Marshall made his decision, now let him enforce it."

The B.O.R. means what 5 people in long black dresses say it means. However the doctrine of stare decisis (Latin for "let the decision stand") is a well recognized principle of American jurisprudence, it gives consistency to the law.

Fiddletown's posts in re; const. interpretation seems to be spot-on.

Azmjs point about the C.C. is spot-on as well. (As a bit of background, but apropos to the topic, is the fact that the C.C. was added to the Const. was included because the Articles of Confederation gave too much power to the states, vis-a-vis commerce. Too many states were levying tariffs on goods from other states & protecting their own citizens' interests to the detriment of the nation as a whole. That, and the fact that the Continental Congress had no power to raise taxes for the good of the country was the reason our first soverign government only lasted about a decade. The states had too much power & nothing got done; the government wasn't working.)

 

[Frank Ettin]

...Art III does not grant SCOTUS the right to say what is constituional or not. Nor does any law give them that power. What gives them that power was the Court's own decision, cited above, and the accquiesence of the public since 1801...

It goes deeper than that.

Under Article III, Section 2, "The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;...." The exercise of judicial power to decide a case necessarily involves determining what law applies to the circumstances and interpreting the law in the context of the facts of the case. And, as Chief Justice John Marshall wrote in the decision in Marbury v. Madison:

....It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.

So, if a law [e.g., a statute or treaty] be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.....

Note also that many of the Founding Fathers (the delegates to the Constitutional Convention who signed the Constitution) were lawyers. They were familiar with English Common Law (the basis of out legal system) and that for a long time it had been customary for the courts, under the Common Law, to consider the validity of such matters as the Acts of Parliament and the actions of the Crown under the rather amorphous collection of statutes, court judgments, treaties, etc., that became understood in the Common Law to be the English Constitution. And thus there was Common Law precedent, as no doubt understood by the Founding Fathers, for the invalidation of a law as unconstitutional being within the scope of the exercise of judicial power. (And English cases continued to be cites by courts of the United States for many years after Independence.)

And while John Marshall may not have been a Founding Father, he wasn't at the Constitutional Convention, he should at least be entitled to be considered a founding uncle. He was a delegate to the Virginia Convention that would ratify or reject the Constitution and, together with James Madison and Edmund Randolf, led the fight for ratification.

 

[belercous]

I'm aware of what the rest of Art.III says. But the matter of determing constituional validity is nowhere in the Const., including by implication. There was no consensus on the subject, so the F.F.'s left it to be worked out later. Some thouht Congress should do it, some thought the Pres. should do it, some thought SCOTUS should do it, and some thought all 3 branches should share the power.

The Court in Marbury claimed the power for itself and no one challenged it, then or later. The Marbury decision was a political decision rendered by a Justice who was a Federalist against a President who was a Democratic-Republican. Notice how the decision prattles on and on about things that were not the issue before the Bar? There was no need for such obiter dicta, the case could have been disposed of in 1 sentence; Marbury was entitled to his judgship, but he brought the case to the wrong court.

 

[Frank Ettin]

...The Court in Marbury claimed the power for itself and no one challenged it, then or later. The Marbury decision was a political decision rendered by a Justice who was a Federalist against a President who was a Democratic-Republican. ...

Of perhaps it was not challenged because it was a proper decision consistent with the concept of checks and balances and Common Law tradition.