- - Wednesday, August 28, 2013

Courts are fickle allies. It’s hard not to cheer on the rare occasions that Supreme Court justices uphold fundamental constitutional principles, as they did by wiping the District of Columbia’s gun ban from the books in the 2008 Heller decision. More often they disappoint, as Chief Justice John Roberts reminded us last year with his surprising embrace of Obamacare.

Conservatives made a mistake in believing the court was going to rescue the country from the health care takeover, an error they’ve repeated in hoping the legal system would end the federal encroachment on gun rights. It was worth a try, but the 9th U.S. Circuit Court of Appeals dashed this hope on Friday when it rendered Montana’s Firearms Freedom Act useless.

Montana lawmakers used this law to tell the federal government that it has no business regulating a locally produced firearm that never leaves state boundaries. The item by definition does not participate in interstate commerce, which is all the Constitution says Congress has the right to regulate. When Gregory Marbut, a prospective Montana gunmaker, asked the Bureau of Alcohol, Tobacco, Firearms and Explosives whether it would respect this statute, the federal agency all but promised to bust down the doors of anyone who tried.

Not even a decade ago, the reliably liberal 9th Circuit would have agreed with Montana. “We cannot agree,” the court ruled in case from 2003, “that simple possession of machineguns — particularly possession of homemade machineguns — has a substantial effect on interstate commerce … . Possession of a machinegun is not, without more, economic in nature.”

Unfortunately, the U.S. Supreme Court ordered the 9th Circuit to reverse itself in light of Gonzales v. Raich, the high court decision giving federal agents a green light to crack down on medical marijuana, irrespective of state laws authorizing its use. The pot ruling also torpedoes the right to produce a gun labeled “Made in Montana” without the explicit blessing of bureaucrats in Washington.

In its decision last week, the three-judge 9th Circuit panel explained that, “Congress could have rationally concluded that the manufacture of unlicensed firearms, even if initially sold only within the State of Montana, would in the aggregate substantially affect the interstate market for firearms.” The lower court once called this same argument “simply too tenuous” to consider, but it has no choice but to follow the Supreme Court’s directive, tenuous or not.

This battle is about far more than guns. Congress inserts itself into every aspect of our lives, telling us what kind of light bulbs, toilets, faucets, shower heads, dishwashing machines and other devices we can use. It threatens us with punishment if we don’t buy a health insurance package designed by the Department of Health and Human Services.

Ever since the New Deal, the Supreme Court has enthusiastically backed the idea that the Commerce Clause is a license for Congress to do anything it chooses. When then-Speaker Nancy Pelosi was asked during the Obamacare debate to cite the constitutional authority that forces people to buy health care, she responded with an incredulous, “Are you serious?”

States such as Montana are on to something in pushing back against federal encroachment, but they’ll get nowhere until the day five reliable high court justices sit on the bench with a respect for the Founders’ intent. It’s going to be a long wait. President George W. Bush thought Chief Justice Roberts was going to be one of those five, but on the most critical issue of his career, Justice Roberts disappointed.

That’s why the only realistic solution is political, not judicial. Montana’s sovereignty won’t be restored until the public decides to stop sending politicians to Washington with a grandiose view of their own authority.

Copyright © 2022 The Washington Times, LLC. Click here for reprint permission.

Please read our comment policy before commenting.

Click to Read More and View Comments

Click to Hide