by Mark Moore
Or at least if they are, they are subject to prosecution if they exceed the bounds of the Constitution. And I mean the real bounds of the Constitution, the ones that can be discerned by anyone with a high school reading level, not the imaginary powers that federal employees called judges have ascribed to their employer via court rulings.
The new Kansas Law specifies that guns and ammunition produced within the state and sold within the state are not subject to the various federal gun laws which have been passed based on Congress’s power to “regulate interstate commerce.” You see back when Congress pretended to honor their oaths to uphold the constitution, they knew that they could not regulate guns because of the Second Amendment. In an effort to end-run the intent of that amendment, they claimed that they had the power to regulate guns under the “interstate commerce clause”. That is to say, Congress has the power under the constitution to regulate commerce between the states. They claimed the Commerce Clause permitted them to pass all of the laws they have made regulating guns.
What Kansas has done is say “as long as the gun is made here, and is only sold here, then there is no interstate commerce to regulate, therefore your laws are not constitutionally valid.” They are not the only state to do this. Wyoming has passed a similar law based on similar reasoning. So has Tennessee and the dispute with the feds on that one seems ongoing.
The story has an Arkansas angle. Oh, not from anything our legislature has done. The single piece of significant pro-2nd amendment legislation passed by them this session was done by mistake– they did not understand the consequences of the bill they passed. Rather, I want to point out that before any of these states passed something like this, an Arkansas resident named Wayne Fincher made a machine guns and kept it within the state of Arkansas to challenge the law on the same legal basis. Judge Jimm Hendren refused to let him put on a defense, and acted otherwise outrageously in the case. Fincher lived 60 years as a law abiding citizen. He is still rotting in prison because he made the major mistake of thinking that words on paper would protect him from the capricious and self-serving use of power on the part of our elites. So far, Tennessee, Wyoming and Kansas are getting away with it, because states are a lot harder to arrest than individual people.
So Kansas wants this taken to court. I wish Kansas the best in their efforts to advance freedom and limit the power of the federal government. Unfortunately, I don’t have a lot of faith that a court case will result in a just verdict. The Founders left an unfortunate gap in the system. There is a fundamental problem with the way disputes between states and the federal government are adjudicated- all cases are decided by federal employees. Even a brief look at the history of the question confirms the obvious- in the long run federal judges will favor the federal view of things regarding disputes between states and the federal government. And why not, their employer is a party to the case?
It is obvious that FEDGOV should not be able to use the “interstate commerce” clause as an end-run on the 2nd amendment, but I am afraid that the federal judges will imagine some fiction by which they rule it can. Such “creative” rulings fly in the face of original intent and the plain meaning of words. For federal judges to concoct such things it helps if they make their rulings while under the influence of a strong hallucinagenic- such as unchecked power.
If states are to be anything other than administrative units of an all-powerful central government, then at some point they are going to have to nullify such laws even when the “unbiased” judges in these cases rule that their employer is correct. The best solution to this problem is the one suggested in “Localism, A Philosophy of Government” (I am a Localist and I own the rights to this work). In the book, one of the many things advised to avoid the unfortunate tendency of power to centralize is that when a state has a dispute with the federal government, the judges hearing the case will be drawn from other states which are not a party to the case rather than federal judges. Federal judges only rule on cases where two states have a controversy among themselves.
Best of luck Kansas, I hope the day comes when we have a legislature and Governor more like yours.
Mark Moore is an advocate of the philosophy of government known as “Localism” as described in the book “Localism, A Philosophy of Government.” (and yes, you should look into it)
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