Like Washington, D.C. Chicago Thumbs Nose At SCOTUS Gun Ban Ruling

McDonald v. Chicago ruled that the Fourteenth Amendment incorporates the Second Amendment and as such defines that states, counties and local municipalities must guarantee individuals their right to self protection and be allowed to own a gun(s). The ruling also makes it clear that states, counties and local municipalities cannot create gun laws that supersede federal laws……or can they?

The city of Chicago threw together a gun ordinance after McDonald v. Chicago, which is nothing more than an in-your-face scoffing of the United States Supreme Court, much the same way that Washington, D.C. did after District of Columbia v. Heller. Why wouldn’t Chicago do similar things? D.C. has not really been tested as to the Constitutionality of their restrictive gun laws. After all, District of Columbia v. Heller only ruled that the District’s gun ban was unconstitutional. It did not define what can and cannot be used for gun restrictions.

Chicago’s continued gun ban ordinance – because that’s what it is – requires everyone to register their guns. The city has 120 days in order to process an application (in six months that is reduced to 45 days). A person cannot purchase and register more than one gun every 30 days and there will be restrictions of the type of guns allowed. But this “gray” area concerns me.

Guns deemed “unsafe” because of safety recalls or poor quality can’t be registered.

A safety recall on guns might be a bit more clear cut but who is going to make the determination that a gun is “poor quality”? By many people’s standards, there are a lot of “poor quality” guns readily available to purchase. This reeks of manipulation. Also don’t be fooled by this statement. If a gun cannot be “registered” it cannot be purchased and possessed within the city.

So, for those living in Chicago, once you’ve jumped through the hoops of registering your firearm, which will take up to 6 months to do, you can keep it in your house but not be allowed to have it outside, including on your porch or in your garage.

So, tell me what you think. Do you think the McDonald v. Chicago ruling provides that states cannot create any gun laws that exceed those of the Federal Government? Obama and his administration are suing the state of Arizona claiming that Arizona does not have the authority to eclipse the immigration laws of the Federal Government. Does this also mean that Illinois and specifically the city of Chicago, doesn’t have the authority to transcend Federal gun laws?

If and when this all gets sorted out, will it be determined that the Federal Government determines what gun laws will exist? And will this open the door for Federal Government to intrude further into our inalienable rights and craft stricter gun laws?

How does this all align with those states pushing back against the Federal Government in attempts to reaffirm state sovereignty?

Tom Remington

After McDonald v. Chicago, What Gun Law Violations Should Be Prosecuted?

It would seem that this would be a first, that law officials would actually honor a Supreme Court ruling concerning gun laws. After District of Columbia v. Heller, the District of Columbia thumbed its’ nose at the SCOTUS and continued its ban on guns until eventually allowing possession while still forcing people to jump through so many legal hoops and requirements most people were not interested.

Now we have McDonald v. Chicago, where the SCOTUS has ruled that states and local jurisdictions cannot deprive people of their right to keep and bear arms. In Wisconsin, the District Attorney for Jackson County says he will NOT prosecute certain infractions of gun laws that he says are in violation of McDonald v. Chicago.

Do you think this is a good idea or a bad idea? Do you think other district attorneys, etc. should make that decision and refuse to prosecute laws that are in violation of McDonald v. Chicago? Tell us what you think and why.

Tom Remington

McDonald v. Chicago – 5-4 Court Rules “Reversed And Remanded”

Justice Alito announced this morning that the Fourteenth Amendment does incorporate the Second Amendment in the Heller case to keep and bear arms in self defense. Therefore McDonald v. Chicago is deemed a victory for gun rights.

Justices in dessent: Stevens, Breyer, Ginsburg and Sotomayer.

It appears all of the majority Justices agree that the Second Amendment applies to state and local governments but there may be some disagreement with Alito’s entire ruling.

McDonald v. Chicago ruling can be found here.

I’ve not examined the ruling yet but it appears McDonald v. Chicago is very close in resembling the Heller case. The Court remanded the case back to the Seventh District Court and what we will probably see is a similar action as to what we saw in Washington, D.C. after Heller.

It appears this is one more step in trying to make some kind of determination as to what is considered “reasonable” gun control. Incrementally we will take back what we can get of our rights to keep and bear arms but as with the Heller case, the Court does not offer any indication as to what is acceptable gun control.

I’ll offer more as I get it.

Tom Remington

Elena Kagan: “Not Sympathetic” About Second Amendment

Hard core? Elena Kagan, Obama’s pick to replace retiring Supreme Court Justice John Paul Stevens, in a memo to former Justice Thurgood Marshall, wrote: “[The man’s] sole contention is that the District of Columbia’s firearms statutes violate his constitutional right to ‘keep and bear arms,’. I’m not sympathetic.” This in reference to an appeal from a D.C. man convicted of carrying an unregistered pistol. His appeal has to be based on whether there is legal standing not on whether a court clerk doesn’t care about another person’s rights.

However, according to Bloomberg, her comments on District of Columbia v. Heller, were:

“There is no question, after Heller, that the Second Amendment guarantees individuals the right to keep and bear arms and that this right, like others in the Constitution, provides strong although not unlimited protection against governmental regulation,”

When people ask why it is that people question the personal views of nominated judges on subjects such as Second Amendment, or Roe v. Wade, this is why. The role of a law clerk, in this case what Kagan was doing in her job under Justice Marshall when she made her comment, is to advise the judge, supposedly based on law, about a ruling. When we hear of a clerk making reference that she is “not sympathetic” about an American citizen’s concern for the protection of his Constitutional rights, it now becomes extremely important as to whether this person should be in a position to hand down rulings. Can we be comfortable believing that she is interpreting the law or being sympathetic or unsympathetic?

Tom Remington

McDonald v. City of Chicago: How Limited Will The Right Be?

Yesterday the United States Supreme Court heard oral arguments in the case of McDonald v. City of Chicago. It appears from comments made during arguments that probably the court will incorporate the Second Amendment into the Fourteenth Amendment via the “Due Process Clause” and not entertain the idea of opening a can of worms by incorporating with the “Privileges or Immunities Clause”. On the surface it would appear that gun rights advocates will win another victory in that a ruling of incorporation would say that the rights guaranteed under the Second Amendment extend beyond the scope of the federal government and forces the states and local communities to honor that right. But how much?

District of Columbia v. Heller ruled that citizens have a right to have a gun in their homes to protect themselves. The ruling made it clear that the Second Amendment guaranteed an individual the right to keep and bear arms. What didn’t get decided in Heller was what, if any, restrictions on those guaranteed rights were allowable. It appears McDonald will not tell us that either.

There is no clear cut established “gun right”. It is not defined. The only thing that has shaped gun rights or gun restrictions, has been state and local laws through our jurisprudence. As we have seen, some of those restrictions have gone so far as to deny certain citizens the right to possess a gun at all, as was the case in Heller, in the District of Columbia and McDonald, in Chicago.

If SCOTUS should rule to force Chicago to abide by the Second Amendment through the “Due Process Clause” of the Fourteenth Amendment, then the question becomes, how much? Will the court offer any ruling as to where Chicago should begin?

In oral arguments, former Solicitor General Paul D. Clement, representing the NRA, suggested that there should be a “carry over” of Second Amendment laws along with the Fourteenth Amendment incorporation.

Personally, I believe the Court will react much the same way it did in Heller. They will make a ruling of whether Second Amendment rights extend to the states and then leave it up to the courts to hammer out what will then become “reasonable” restrictions on guns.

After Heller, even though the High Court ruled that a ban on gun ownership was unconstitutional, the District of Columbia did not make it easy for anyone to get a gun and register it. I foresee the same events in McDonald.

Tom Remington

McDonald v. Chicago: Does 2nd Amendment Apply To States?

McDonald v. City of Chicago is about the right of citizens to keep and bear arms in Chicago, right? Just as District of Columbia v. Heller was about the right of the citizens to keep and bear arms in Washington, D.C. Right? Well, the answer is a resounding YES……and NO!

Heller was a victory for gun rights as the ruling declared that the Second Amendment did guarantee an individual, not a state-run militia, the right to keep and bear arms. But it didn’t answer the question as to whether the states and the cities and towns within those states, have the right to limit or restrict gun ownership based on a degree of sovereignty from the federal government. Hopefully, this is what McDonald v. Chicago will answer for us.

But hold on. It’s not quite that simple. The Second Amendment, which is the one most Americans believe guarantees them the right to own a gun, says: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” We know that everybody and his brother have twisted, spun, manipulated, redefined and reprocessed the Second Amendment hoping they could convince the people what they think the Second Amendment is “meaning” to say. We now know from Heller, that Justice Scalia’s majority opinion stated very clearly that the Second Amendment guarantees an individual that right.

McDonald, however, is a bit more complicated. Lawyers for McDonald are hoping to convince the Supreme Court that the Second Amendment, as defined by Scalia’s Heller decision, has to be applied to the states because of the Fourteenth Amendment, which, as it might apply to McDonald, says: “Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Whether we like it or not or agree, over the years the Due Process Clause of the Fourteenth Amendment has been used repeatedly to apply our rights under the Constitution. I have often asked why the Second Amendment cannot stand along and have never received what I would call a satisfactory answer. Nevertheless, McDonald will ague accordingly in hopes that the Supreme Court will agree.

I have repeatedly stated that I thought the use of the Fourteenth Amendment to apply the Second Amendment to the states comes at us as a bit of a two-edged sword. I still think I’m right in that analysis. States are scrambling around finding ways of reestablishing their sovereignty. Because the Fourteenth Amendment utilizes the power of the Federal Government to apply a Constitutional right, isn’t that somehow calling upon the authority to exert the power one is seeking to get out from under?

Ken Klukowski for Townhall, makes a stab at trying to explain how lawyers for McDonald will use the Fourteenth Amendment to win their case.

The lawyers for Otis McDonald and his co-plaintiffs are libertarian activists, who are pushing an aggressive and potentially risky constitutional theory to the Court. Without getting too much in the legal weeds, McDonald is arguing that the Court should extend gun rights to the states through the little-known Fourteenth Amendment Privileges or Immunities Clause, and overrule a venerable precedent from 1873 called the Slaughter-House Cases, which protects state sovereignty by limiting the reach of Congress and the courts.

The National Rifle Association, considered a “respondent” in this case, has been granted time on the floor to argue their side of this case in hopes to keep the court focused on gun rights and not allow the “Privileges and Immunities Clause” argument to become so broad based the court balks on making any ruling. The NRA would like to use the Fourteenth Amendment to only apply to the Second Amendment in this case.

The NRA’s argument therefore stresses that the Court should apply (or “incorporate”) the Second Amendment to the states through the Fourteenth Amendment Due Process Clause. Although this approach is beset with problems from a conservative legal perspective, it’s nonetheless how the Court has always tackled these issues and so it becomes the safest route for extending gun rights to the states.

On March 2, 2010, the Supreme Court is scheduled to hear oral arguments in this case. How focused it will be remains to be seen. Potentially, this ruling, as it might pertain to our Second Amendment, could be huge. In this modern era of gun laws and battles over gun rights, each step taken to define our right to own guns is monumental. We must remember that the Supreme Court has tended to shy away from Second Amendment interpretations. Should the Court opt to define for us the powers of the states in forcing gun laws, would be historical.

Tom Remington

Top Ten Black Bear Blog Stories Of 2009

It’s that time of year once again to recap the year in stories…..that is stories that I believed to be important issues for hunters and outdoor enthusiasts in general. The importance of these events may not be measured in the number of articles written or the extent to which I covered them but more by what I deem to be of primary concern to all outdoors people.

10). Spent Military Brass – It was a short-lived story but one that exemplified the power that exists behind the firearms and ammunition industry in the country – perhaps the last stronghold against the tyrants working to rob us all of our rights.

The U.S. Government sent out a notice that all spent military brass would be destroyed rather than recycled, a move that would have reduced the ability of companies who reload that spent brass, creating a shortage of ammunition to the American people.

For the whole story, start with this link and follow links in the story for updates.

9). Sonia Sotomayor – The appointment of Justice Sonia Sotomayor to the United States Supreme Court holds potential ramifications for all of us. We know that she is a non supporter of Second Amendment rights and has ruled in lower courts that states do not have to abide by federal gun laws, including the Second Amendment.

We may have a chance early in 2010 to see Justice Sotomayor in action as the U.S. Supreme Court will hear the case of McDonald v. City of Chicago, in which the gun ban in that city is being challenged as unconstitutional, much the same way as District of Columbia v. Heller.

For articles pertaining to Justice Sonia Sotomayer, follow this link and scroll through.

8). “To Catch a Wolf” – As many of you know, I spend a great deal of time discussing wolves here at the Black Bear Blog. It’s not so much about some kind of infatuation with the creature as the political ramifications that effect all Americans.

As a bit of a spin off on the sometimes old and tired topic of wolves and other predators and the onset of wolf hunting seasons in Idaho and Montana, I spent a great deal of time reading and researching more of the world wide history of wolves.

This research included not only the struggles people had with wolves throughout history but also the difficulties encountered in trying to hunt and trap these creatures. The stories ranged from unbelievable, to sad due to loss of life.

I thought it only fitting that with wolf hunting seasons scheduled for the first time in 70 or so years in America, that it would be educational to see how wolves were taken care of many years ago.

“To Catch a Wolf” Part I can be read from this link. There you will find links to all five parts.

7). McDonald v. Chicago – While little has been written about McDonald v. City of Chicago, the importance of this future event becomes Chapter II in the interpretation of the Second Amendment. Chapter I of course being District of Columbia v. Heller.

The U.S. Supreme Court will hear arguments in this case March 2, 2010. Chicago bans guns much the same way that Washington, D.C. did prior to the Heller case. Almost immediately after Heller, a lawsuit was filed challenging the legal right for the City of Chicago to deny its citizens the right to keep and bear arms.

I suspect that this story may make the top ten stories next year. For more on McDonald v. Chicago, follow this link and scroll through the stories.

6). New Jersey Bears – No, this is not a football team. New Jersey hunters and concerned residents have battled the state of New Jersey over the management of its bear population. New Jersey had a bear hunt to help reduce bear numbers and reduce bear/human encounters. When Jon Corzine became governor, he appointed Lisa Jackson to head up his Environmental department. Under Corzine’s direction, she threw away a court-approved bear management plan and banned all bear hunting.

When Barack Obama became president, he appointed the same Lisa Jackson to head the federal environmental department and Governor Corzine was recently defeated in a run for governor and will be leaving office in January.

At this point in time, the citizens of New Jersey can only wonder what will become of the black bears. Fortunately for everyone, bears have slipped away into winter hibernation but come spring, bears will be awakening. How will the new administration handle its bear management?

Follow this link for stories and information on New Jersey bears.

5). Delta Smelt – The delta smelt is what’s wrong with the Endangered Species Act. The ESA was designed to protect an animal or plant species but not at the expense of humans. Water, necessary for growing crops and keeping residents of California employed and fed, has been withheld in order to hopefully protect a tiny fish.

Questions surround whether the efforts being employed are doing anything to protect the smelt while thousands of Californians are out of work and businesses are failing. The withholding of water has caused a man-made drought that now will take years to recover from the damages done.

Read about the delta smelt with this link.

4). Maine’s Deer Problems – The state of Maine has a shortage of whitetail deer in much of the geographic territory of the state. The Maine Department of Inland Fisheries and Wildlife has been quick to blame a couple of bad winters for the problem, but many question whether that’s really it.

Most will admit that loss of habitat and access to hunting grounds has played a role but little attention is directed at a rapidly growing coyote population and the role of other large predators.

Debates are ongoing and actions are lacking but the future of Maine’s whitetail deer remains in the balance. Some have indicated that the vast majority of the northern half of the state can no longer sustain a whitetail deer population and until efforts are made to rebuild wintering deer habitat, it will be decades, if ever, before that happens.

This past year I did a four-part series on Maine’s deer management problem. You can follow this link to Part I. There you will find links to the other parts and also check out the “related articles” links at the bottom of each page.

Other key articles can be found here, here, here, here, here, and here.

3). Firearms Freedom Act – It all began in Montana. With the support of the Montana Legislature and the signature of the governor, Montana had passed into law a bill that essentially said that any gun or accessory manufactured in Montana and remained in Montana was not subject to federal firearms regulations.

This brings to the forefront the Tenth Amendment to the Constitution and a reclaiming of state sovereignty. The passage of this bill will be challenged, no doubt, but Montana took extraordinary steps seeking the ear of the court and requesting a ruling on their bill.

With the overreaching new Obama administration, many people fear the tyrannical pressures being put on states to relinquish their state powers and sovereignty. This has set off a domino effect and now there are 29 states that have either passed, introduced or are planning to introduce a clone of Montana’s Firearms Freedom Act.

Follow this link for more information on a movement that could have overwhelming implications on all Americans.

2). Wolves – Wolf Delisting, Wolf Hunt, Wolf Disease – The topic of wolves in America remains big and emotional. The reason I continue to focus my efforts on this is because it’s strong political ramifications effect all of us. It challenges the core of the Endangered Species Act, it highlights the hypocrisy of the environmentalists who make their living by suing the federal government, while stealing away Americans rights, it has revealed corruption at many levels and without proper constraints, treads on the very rights of free Americans.

Lawsuits affected the delisting of the wolf but eventually Idaho and Montana, if only temporary, gained custody of wolf management and implemented wolf hunts for the first time in about 70 years. Idaho still has a hunt going on as I write this. Pending lawsuits threaten to once again shut down the wolf hunts and take the management away from the states, allowing wolf numbers to grow unchecked while the people sit by watching their elk, deer and moose herds disappear, while giving livestock owners major headaches.

And if all this wasn’t enough, testing of wolves has revealed the animals are full of worms and are spreading the diseases feared by some and ignored by others, before reintroduction.

It appears there may never be an end to this debate. In the meantime Wyoming has been shut out of the delisting process because of politics being played. Lawsuits are pending for Wyoming as well.

You can spend weeks reading the seemingly unending articles on wolves by following this link.

1). Climate Change/Climategate – Although not everyone will admit it, Climategate may prove to be the biggest revelation not only to the world of climate science but the entire scientific community.

Global warming and its causes have been a hot button topic for several years now. As a matter of fact, it has been around long enough now that a majority of people have been indoctrinated to believe that climate change is the result of the influence of man living on this planet. This indoctrination took place in such a way that by the time the entire scientific community became involved, convincing “believers” that the science wasn’t settled became a daunting task.

Aided now in that effort was what is now becoming apparent a whistle blower’s release of emails and documents from the Climate Research Unit at the University of East Anglia that showed fraud, conspiracy and cover-up of scientific data.

Whether you buy into the theory that man’s influence on this planet is warming it or not, or whether you want to believe that the information contained in the emails and documents proves or disproves anything, the fact is that it is quite likely to change how science and specifically scientific research, especially that funded by governments and special interest groups, is conducted and perceived.

For more on Climategate and global warming in general, follow this link.

Tom Remington

Court Date Set For McDonald v. City of Chicago

A date has been set for the United States Supreme Court to hear oral arguments in the gun rights case of McDonald v. City of Chicago. This suit was filed immediately after District of Columbia v. Heller. The McDonald case is challenging the legality of the City of Chicago’s gun ban.

Tom Remington

Why Do We Need The Fourteenth Amendment To Reinforce The Bill Of Rights?

*Scroll for Update*

Next summer the United States Supreme Court will hear the case of McDonald v. Chicago, which is a challenge to the constitutionality of the city of Chicago’s gun ban. Similar to the most recent gun rights ruling of District of Columbia v. Heller, in which the Supreme Court declared D.C.’s ban unconstitutional and that the Second Amendment guaranteed an individual right to keep and bear arms, the ruling did not define to what extend the states and their local governments can impose their own gun laws.

We have read of late that a Ninth District Federal Appeals Court reaffirmed that the Fourteenth Amendment “incorporates” the Second Amendment, meaning that the 14th Amendment spells out again that the Privileges or Immunities Clause grants the rights of the Bill of Rights to all legal and lawful citizens. It’s a shame that somehow became necessary.

Jacob Sullum, today in his Townhall article, “From Guns to Butter” gives us his interpretation of how the Supreme Court Justices should see the McDonald v. Chicago case while applying the Fourteenth Amendment.

Last week, the Court agreed to hear a Second Amendment challenge to Chicago’s handgun ban. Since that law is very similar to the Washington, D.C., ordinance that the Court declared unconstitutional last year, it is bound to be overturned, assuming the Court concludes that the Second Amendment applies not just to the federal government (which oversees the District of Columbia) but also to states and their subsidiaries.

We know that at least one Justice does not see the Second Amendment as applying to the states. Justice Sonya Sotomayor, the newest member of the court, in previous rulings and statements has openly said that the federal government does not have the power to force Second Amendment rights onto state and local governments.

As Sullum points out, he believes that it was clearly understood during the ratification process of the Fourteenth Amendment what the intent of such an amendment was for.

They perceived the amendment as a remedy for the oppressive policies of Southern states that sought to deprive freedmen of their basic liberties.

The right to weapons was one of the liberties frequently cited by the 14th Amendment’s backers, since disarmed blacks were defenseless against attacks by Klansmen and local officials. As reflected in post-Civil War legislation that the amendment was intended to reinforce, its supporters also were concerned about economic liberty: the right to own and exchange property, make and enforce contracts, and work in the occupation of one’s choice — all freedoms the Southern states tried to deny former slaves.

McDonald v. Chicago has the potential of being an even bigger case than District of Columbia v. Heller. It would certainly appear to me that any ruling will be a two-edged sword. Should the Court rule as Sullum suggests, this would appear to bode well on those seeking enforcement of the rights guaranteed by the Constitution. However, to some, the downside would be that the ultimate power is given back to the federal government. Where does this leave states in the bid to reclaim state sovereignty?

Some say this is why the Tenth Amendment is so important. The Tenth Amendment is supposed to limit the authority of the Federal Government to only what it is granted under the Constitution. But we know that our Congress has for decades overstepped their authority in the creation of laws far exceeding anything granted them by law.

History has shown us that not always will the High Court in our land rule according to the law. It is always easy to second guess what the Court will do and why and we can only hope that the system of interpreting the laws of the land is upheld.

*Update* For more on the Fourteenth Amendment, see Greg Farber’s “Fourteenth Amendment Summary“.

Tom Remington

U.S. Supreme Court Will Hear Chicago Gun Ban Case

Last year the U.S. Supreme Court heard the case of District of Columbia vs. Heller and that ruling declared that the Second Amendment to the United State Constitution guaranteed an individual the right to keep and bear arms. But that didn’t stop Chicago from continuing its gun ban, like Washington, D.C. had before the ruling and still does to some degree.

Chicago claims that the Federal Government does not have power over the states and/or municipalities to create their own gun laws. That claim has been challenged and appealed to the highest court in our country. The U.S. Supreme Court will hear McDonald vs. Chicago.

We know that the newest member of the Court, Justice Sonya Sotomayor, sat on an appeals court and supported a ruling in New York very similar to the McDonald vs. Chicago case in which she ruled that Federal gun laws cannot overrule state laws.

It may just be that the Supreme Court will decide whether its ruling in District of Columbia vs. Heller also extends to the states. Heller did not clarify that and I speculated back then that the day would come when a decision from the courts would be needed. But there are issues in this that will make the case interesting.

As I see it, some are wanting their bread buttered on both sides. Many individuals cry out for Second Amendment protection for their individual right to keep and bear arms, while at the same time demanding enforcement of the Tenth Amendment. The Tenth Amendment spells out that the only power the Federal Government has over the states is what is given them by the Constitution.

That in and of itself presents a problem to those seeking to have protection of the U.S. Constitution to own guns and yet if states have the power to make and enforce their own gun laws, as is supposedly granted by the U.S. Constitution, then we have a problem.

But it’s not even that simple. Recently the Ninth Federal Court of Appeals ruled that the Fourteenth Amendment incorporates the Second Amendment therefore giving the Federal Government power to control guns.

With several states now either having or considering laws to challenge the Federal Government in order to reinsert their rights under the Tenth Amendment, does it not make sense that states, such as Illinois, will need to examine their own constitutions to see if gun ownership is guaranteed.

McDonald vs. Chicago may prove to be decisive in two ways. It may clarify federal power over the states, something many states are trying to get away from or it may be one more step toward dismantling the strong arm of the federal government.

This case will be heard sometime next year.

Tom Remington

Montana’s Firearms Freedom Act Battle Against Obama’s Power Grab

Many conservative Americans and those who still understand and cherish the United States Constitution as the glue that keeps our nation free, cheered at the signing of the Montana Firearms Freedom Act, an act signed by Montana Governor Brian Schweitzer and set to take effect on October 1, 2009. The Act essentially declares that any guns or certain parts manufactured in Montana and remain in Montana are not subject to the strong arm of the federal government. It’s an ambitious battle that could have sweeping consequences for Americans and derail the Statists’ progressive, manipulative, incrementalism aimed at total control over free citizens of this country.

Much of the basis for formulating this act has been the attempted revival of the 10th Amendment.

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.

A major roadblock facing the Montana Firearms Freedom Act is the Commerce Clause.

Article I, Section 8, Clause 3:
“[The Congress shall have power] To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;“

In seeking a “declaratory judgment” the Montana Shooting Sports Association and the Second Amendment Foundation are intending to file a lawsuit on October 1, 2009 in order that a ruling can be made and hopefully Montanans can move forward in implementing their new Act.

In the Missoulian yesterday, Alan Gottlieb of the Second Amendment Foundation, said that if guns are manufactured in Montana and stay in Montana, then there is no “interstate commerce”.

If it were only that simple but the reality is we have to deal with the courts and all too often the courts are more interested in activism than interpreting the Constitution. They also closely follow precedence. In Mark Levin’s new book, “Liberty and Tyranny“, in his chapter on federalism he speaks of a major Supreme Court ruling, Wickard v. Filburn, that sets the stage for doling unconstitutional power over to the federal government. Here’s what Levin said:

The Constitution’s interstate commerce clause had as its purpose the promotion of commerce and trade among the states. However, in 1942 the Supreme Court ruled in Wickard v. Filburn that a farmer growing wheat on his own land and for his own use was still subject to federal production limits, even though none of his wheat ever left the state, the Court “reasoned” that by withholding his wheat from commerce, the farmer was affecting interstate commerce, even though there was no commerce, let alone interstate commerce. This meant that private economic activity conducted for the sole purpose of self-consumption and occurring wholly within a state’s borders would now be subject to federal regulatory authority under the Agricultural Adjustment Act. Wickard swept away 150 years of constitutional jurisprudence, decentralized governmental authority, and private property rights protection.

Shortly after the passage of the Montana Firearms Freedom Act, Obama’s Bureau of Alcohol, Tobacco, Firearms and Explosives sent out open letters to firearms dealers in Montana and Tennessee informing them that federal law trumps state law when it comes to gun regulation. It appears the Obama administration is getting their ducks in a row with the intention of fighting the states wishing to restore their sovereignty. This has to be a thorn in the side of an administration that has systematically since taking office worked to destroy what is left of our Constitution.

One could argue the differences between the Montana Firearms Freedom act and Wickard v. Filburn and see a major difference. The farmer wishing to grow wheat on his own land for his own consumption, while rational thought tells us this is what America is all about, there is no amendment that directly spells out that a farmer is guaranteed that right. With our Second Amendment, one could also argue that this Amendment clearly stands alone and cannot be infringed.

There are of course distinct differences between possessing a gun and manufacturing a gun.

Recently Justice Scalia wrote the majority opinion in District of Columbia v. Heller. His ruling reaffirmed what most Americans believed, that the Second Amendment was a guarantee to keep and bear arms by individuals. His opinion declared the District of Columbia’s ban on guns unconstitutional. What this ruling did not do is clarify the powers in gun regulations between those of the several states and the federal government.

To complicate matters even further, the Ninth District Court ruled recently that the “due process” clause of the 14th Amendment incorporates the Second Amendment, therefore forcing the states to apply the Second Amendment and not create gun laws that supersede federal law.

If we could clear up the Second Amendment issue it might help in the fight for sovereignty and the Firearms Freedom Act. We face a two-edged sword. State’s want to regain sovereignty and yet cheer the ruling that state’s can’t create stricter gun laws than those at the federal level. Who is right? Why can’t the Second Amendment stand alone, guaranteed to every individual American citizen? Federalism reserved power to the states, those not given in the U.S. Constitution.

Needless to say, state sovereignty has been shoved out the window for a very long time. I can guarantee you that this administration has no intention of allowing any kind of power to be given back to the states. One very large obstacle that stands in Obama’s way of total control is the Second Amendment. His record has proven to us that he has no respect for our right to keep and bear arms and will do whatever possible to strip us of them.

Our future does not lie in the hands of President Obama or Congress. It lies with we the people. Many have said the Montana Firearms Freedom Act, along with several other states proposing similar legislation, is a waste of time and effort. I disagree. By saying such you are claiming defeat and that the people no longer have a say.

It is a difficult battle but it has to start somewhere. In this case it begins in Montana and it’s stretching across the land. It tells me there are still Americans who remember the Constitution and the America our ancestors fought and died for. We want it back. We’ll be damned if we are going to sit idly by and watch a group of 60s anti-establishment radicals take it away.

Incrementalism works both ways.

Tom Remington

Obama Administration Begins Opposition To States Claiming Sovereignty And Gun Rights

The several states are lining up to reclaim their sovereignty and telling the federal government to butt out. The American Flag is not flying high in those states currently. This is being done in myriad ways but all are related in that most claim that the Tenth Amendment protects the states from federal tyranny. States are passing resolutions, memorials and two states have passed laws and they intend to apply those laws for their citizens. The two states are Montana and Tennessee.

It was expected that at some point these laws would be challenged and it appears actions to do such has begun. The Federal Bureau of Alcohol, Tobacco, Firearms and Explosives has published open letters to federal firearms license holders in Montana and Tennessee explaining that federal law trumps state law when it comes to gun laws.

“As you may know, federal law requires a license to engage in the business of manufacturing firearms or ammunition, or to deal in firearms, even if the firearms or ammunition remain with the same state. All firearms manufactured by a licensee must be properly marked. Additionally, each licensee must record the type, model, caliber or gauge, and serial number of each firearm manufactured or otherwise acquired, and the date such manufacture or other acquisition was made. Firearms transaction records and NICS background checks must be conducted prior to disposition of firearms to unlicensed persons. These, as well as other Federal requirements and prohibitions, apply whether or not the firearms or ammunition have crossed state lines.

In a report filed by CBS News, it seems to indicate that even though these states are claiming sovereignty under the Tenth Amendment, the Federal Government may have power over such gun laws as the Firearms Freedom Act, via the Commerce Clause.

Read literally, the Tenth Amendment seems to suggest that the federal government’s powers are limited only to what it has been “delegated,” and the U.S. Supreme Court in 1918 confirmed that the amendment “carefully reserved” some authority “to the states.” That view is echoed by statements made at the time the Constitution was adopted; New Hampshire explicitly said that states kept “all powers not expressly and particularly delegated” to the federal government.

More recently, federal courts have interpreted the Tenth Amendment narrowly, in a way that justifies almost any law on grounds that it intends to regulate interstate commerce.

World Net Daily points out in an article of their own that the Montana Firearms Freedom Act bill declares that Congress has not “expressly pre-empted state regulation of intrastate commerce pertaining to the manufacture on an intrastate basis of firearms, firearms accessories, and ammunition”.

I have been saying for some time that all of this will eventually wend its way through the courts ultimately landing at the feet of the United States Supreme Court. This is one reason the approval of Sonia Sotomayor as a Supreme Court justice is vitally important, especially due to the fact that she is anti Second Amendment and has shown little regard for the original intent of the Constitution.

Also at issue in this debate are pending lawsuits challenging gun laws in other states. Chicago’s gun ban is being challenged after the District of Columbia vs. Heller decision reaffirming an individual right to keep and bear arms. The Seventh Circuit Court of Appeals has ruled that federal gun laws do not pertain to the states, a position taken by Sotomayor.

This is an interesting ruling considering that prior to this the Ninth Circuit Court ruled that the Fourteenth Amendment’s Due Process Clause incorporates the Second Amendment and therefore federal law, which now holds the ruling of the District of Columbia vs. Heller decision, applies to the states rendering them unable to create gun laws that supersede federal laws. This will end up at the Supreme Court.

While we are discussing the Fourteenth Amendment, the Second Amendment and Ninth and Tenth, the BATFE is sending out public letters, assumed to be authorized by the Obama administration, to federal firearms dealers in Montana and Tennessee, stating that federal law supersedes state laws, at least as they pertain to firearms and ammunition.

Where will this all end up? I believe the Supreme Court but I know not how long this may take. In the meantime, the Obama administration, made up of mostly anti-gun people, are grasping to gain control over your right to keep and bear arms. From the day Obama was elected, the people rushed to stores buying up guns and ammunition at unprecedented rates. With the combination of a new president and staff known to want to ban gun and gun sales and the District of Columbia vs. Heller ruling, it has helped spur more laws to relax gun restrictions. This, I am positive, angers the Obama administration.

None of this comes as a surprise to Gary Marbut, President of the Montana Shooting Sports Association. Marbut was directly responsible for the Montana Firearms Freedom Act. In a letter sent to his members of MSSA, Marbut points out what he views as little concern over the letter and how it was expected.

1) The letters are addressed only to FFLs and purport to assert authority only over those licensees already under the federal thumb because of their licenses. We’ve always assumed that people with existing FFLs would not be players in the state-made guns exercise because they will not wish to risk thwarting the earned reputation the BATFE has for vindictiveness. The letters are not addressed to non-FFLs, those folks who are potential participants in the state-made guns business.

2) The BATFE letters may lack any official import because they are not signed by the official who appears in the signature block, but by some unknown other person. It’s difficult to place much credence in a missive upon which the purported issuing person is unwilling to put his signature, and for which the signer is unknown.

3) The essence of the letter is a declaration that the laws that the BATFE enforces supercede the U.S. Constitution and the Tenth Amendment. I understand that the BATFE hopes that is so, but that’s far from proven yet. (We still recommend that nobody make these state-made guns until we can litigate and vet the principles involved.)

4) The letters, if they are official even though unsigned by the issuer, will help us establish standing to get this issue squarely before the federal courts. The feds have thrown down the gauntlet.

I like Montana’s approach to their action in the creation of their Firearms Freedom Act. They are proactively seeking to bring this issue to the courts for a ruling. They believe in their own state’s constitution and that they, according to their contract with the people and the United States Government, have the sovereignty and freedom under the U.S. Constitution, to make their own laws in matters such as this.

This will be a long and drawn out affair but one that is ripe for a good battle. Let’s hope this battle arrives before Obama can stack the Supreme Court with more anti-gun “empathetic” justices.

Tom Remington

NRA-ILA Issue Statement On Judge Sonia Sotomayor

Other than declaring war, neither house of Congress has a more solemn responsibility than the Senate’s role in confirming justices to the U.S. Supreme Court. As the Senate considers the nomination of Judge Sonia Sotomayor, Americans have been watching to see whether this nominee – if confirmed – would respect the Second Amendment or side with those who have declared war on the rights of America’s 80 million gun owners.

From the outset, the National Rifle Association has respected the confirmation process and hoped for mainstream answers to bedrock questions. Unfortunately, Judge Sotomayor’s judicial record and testimony clearly demonstrate a hostile view of the Second Amendment and the fundamental right of self-defense guaranteed under the U.S. Constitution.

It is only by ignoring history that any judge can say that the Second Amendment is not a fundamental right and does not apply to the states. The one part of the Bill of Rights that Congress clearly intended to apply to all Americans in passing the Fourteenth Amendment was the Second Amendment. History and congressional debate are clear on this point.

Yet Judge Sotomayor seems to believe that the Second Amendment is limited only to the residents of federal enclaves such as Washington, D.C. and does not protect all Americans living in every corner of this nation. In her Maloney opinion and during the confirmation hearings, she deliberately misread Supreme Court precedent to support her incorrect view.

In last year’s historic Heller decision, the Supreme Court ruled that the Second Amendment guarantees the individual’s right to own firearms and recognizes the inherent right of self-defense. In addition, the Court required lower courts to apply the Twentieth Century cases it has used to incorporate a majority of the Bill of Rights to the States. Yet in her Maloney opinion, Judge Sotomayor dismissed that requirement, mistakenly relying instead on Nineteenth Century jurisprudence to hold that the Second Amendment does not apply to the States.

This nation was founded on a set of fundamental freedoms. Our Constitution does not give us those freedoms – it guarantees and protects them. The right to defend ourselves and our loved ones is one of those. The individual right to keep and bear arms is another. These truths are what define us as Americans. Yet, Judge Sotomayor takes an opposite view, contrary to the views of our Founding Fathers, the Supreme Court, and the vast majority of the American people.

We believe any individual who does not agree that the Second Amendment guarantees a fundamental right and who does not respect our God-given right of self-defense should not serve on any court, much less the highest court in the land. Therefore, the National Rifle Association of America opposes the confirmation of Judge Sonia Sotomayor to the position of Associate Justice of the United States Supreme Court.

Discussing The Hearing Process Of Judge Sonia Sotomayor

Today at 6 p.m. I will be participating in a conference call sponsored by the Heritage Foundation. This conference call will include South Carolina Senator Jim Demint and former Attorney General Edwin Meese of the Reagan years. We will be discussing the nomination process and hearings taking place today for President Obama’s selection as a replacement for Justice Souter on the U.S. Supreme Court – Judge Sonia Sotomayor.

I have yet to decide but I may attempt to live-blog that conference. If I don’t, I will update readers at the conclusion of the call. I am grateful to have been able to be a part of this call and I thank the Heritage Foundation, one of my all-time favorite organizations.

As most of you know, I have real concerns about Judge Sotomayor’s appointment to the Supreme Court. Among many reasons, her rulings have indicated to us that she sees very little relevance in the U.S. Constitution and the Bill of Rights as they pertain to states, cities and individuals. She recently ruled that the Second Amendment is a federal law that does not apply to the states, or cities such as Chicago, that, like Washington, D.C., has an outright ban on guns.

We know that the U.S. Supreme Court ruled in a 5-4 decision in District of Columbia vs. Heller, that the Second Amendment guarantees the individual citizen the right to keep and bear arms. This doesn’t seem to have had much of an impact on Judge Sotomayor who still favors cities like Chicago being able to strip that right away from you and I.

This should concern every citizen of this country. Whether you support the right to keep and bear arms, it is more than troubling that a potential life-time appointee to the United States Supreme Court would hold such disregard for the Constitution. The fundamental glue that holds this country together is that judges, sworn to uphold the Constitution and to protect the rights of all citizens, rule according to the laws of this land not make up their own. For a judge to have disregard for that rule of law, claiming that states and cities have the right to create their own laws contrary to those guaranteed us under our Constitution, leaves us to ask if Judge Sotomayor believes any right guaranteed us has any Constitutional value?

For anyone to truly believe this can only make us ask, why do we even have a Constitution?

Tom Remington

Second Amendment Incorporation Into Fourteenth Amendment – Open Discussion

I believe this topic will make for a good open discussion for readers. Please feel free to comment and offer supporting facts for your comments.

This issue is a bit complicated but I think if you take a second you should be able to understand what is going on. Recently the Ninth Circuit Court ruled in a California case that the Second Amendment, the right to keep and bear arms, applies to the state because of the Due Process clause of the Fourteenth Amendment.

Amendment XIV

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The NRA filed a lawsuit against the City of Chicago because it continues to ban guns after the decision in District of Columbia vs. Heller. Coming after the Ninth Circuit Court decision, the Seventh Circuit Court ruled that the Second Amendment does not apply to the states.

In its lawsuit against Chicago, now about two-thirds of all the many states have signed amicus briefs in support of the Ninth Circuit Courts ruling to incorporate the Second and Fourteenth Amendments.

While this all sounds good for enforcing the Second Amendment as an individual right, isn’t this a two-edged sword? By agreeing to the incorporation, aren’t we saying that the federal government is the ultimate authority over the states? If not the Second Amendment being overruled by the Fourteenth, then what else will the federal government snatch away from the states?

Presently, there is a movement in this country to regain state sovereignty. Does signing on to this ruling now claim states are willing to fore go their sovereignty in order to enforce the Second Amendment?

Or better yet. Why is it that we need one Constitutional Amendment to force an existing one? The Second Amendment was one of the original. It was drafted knowing full well the importance of a God given right to self protection and protection from tyranny. Isn’t that good enough? Why do we need to incorporate with the Fourteenth in order to honor the Second?

Tom Remington

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