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Judging from social media comments, there is a lot of misunderstanding concerning the recent ruling by the 9th Circuit Court of Appeals in Peruta v. County of San Diego.  The purpose of this article is to clear up the some of the confusion and to call attention to a potential scenario whereby the question of the 2nd Amendment ‘right to carry’ might ultimately be used by the left in an effort to damage the Constitution beyond the 2nd Amendment.

In Peruta, the 9th Circuit ruled that there is no 2nd Amendment right to carry a firearm in public.  The states comprising the 9th circuit are: Alaska, Arizona, California, Idaho, Montana, Nevada, Oregon and Washington.  Because Peruta is a decision by the 9th Circuit, it affects only those states.  Importantly, it does not make carrying a firearm illegal in those states.  It doesn’t nullify or void or de-constitutionalize any 9th Circuit member states’ laws permitting citizens to carry.  It merely states that there is no individual 2nd Amendment right to carry a firearm.  Thus, states may choose to disallow carrying a firearm, but they are not required to do so.  Any state in the 9th Circuit which chooses to permit carrying may do so.  That has not changed.  And the 9th Circuit decision has no direct legal effect at all in any state outside of the 9th Circuit.

Of course, that is not so say that the Peruta decision is no cause for concern outside of the 9th Circuit.  If a citizen’s rights are infringed, we should all be concerned.  Similarly, anytime an American court attempts to justify perceived impositions upon constitutional rights, we rightfully worry about the rule of law and the continued diminishment of our Constitution.  Finally and most importantly, the practical ramifications of the 9th Circuit decision might be more profound and much more imposing than would initially appear.

In the event the Peruta decision is accepted on appeal by the Supreme Court, or a similar case from another Circuit results in such an appeal being accepted by the Supreme Court, then the Supreme Court will have the opportunity to decide for the entire nation what, if any constitutional right individuals have to carry firearms.  Were the Supreme Court to issue a decision in accord with the holding in Peruta, there would be virtually no individual constitutional right to carry a firearm, whether concealed or open carry.  Any state could legislate stringent restrictions or virtual bans.  But again, they would not be obliged to do so.  A rights respecting state would still have the ability to enable individuals to carry firearms despite the ruling that they have no 2nd Amendment right to do so.  There is however a larger concern in the event all three branches of government align.

‘The Supremacy Clause’ of the Constitution is contained within Article 6 which provides in part that the “Constitution, and the laws of the United States which shall be made in pursuance thereof…shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”  The Supremacy Clause made perfect sense when drafted because there was an expectation that the powers of the Federal government, limited as they were by the Constitution itself, would remain limited.  The founders expected that any significant attempt by the Federal government to illegally expand its power would by rebuffed by the states and by the people.

The New Deal era ushered in a new age in Federal Government power.  As I wrote more extensively Fildena 150, a Supreme Court which had been a stalwart protector of the Constitution against overreaching New Deal legislation, became compliant to Congress and FDR almost overnight.  Where it had typically used judicial review of federal legislation to limit the Federal Government to its constitutional sphere, it began reinterpreting the now ‘living’ Constitution so as to enable a massive expansion of Federal Government power.  One of its favorite and well-worn avenues for doing so was the misinterpretation of ‘The Commerce Clause’ of the Constitution.

Article 1, Section 8 of the Constitution specifies Congress’s powers.  Included is the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”  The Commerce Clause was intended to enable Congress to regulate trade among the states so that it could be normalized and in order to avoid trade conflicts between and among the states.  For decades that’s how it was utilized and interpreted.  Only after the advent of the ‘living’ Constitution, did the Federal Government use the Commerce Clause to justify the widespread intrusion upon myriad private economic and personal relationships between and among individuals – and the Supreme Court rubberstamped virtually every expansion for decades.

Finally, in 1995 the Supreme Court decided the case of Lopez v. United States.  In Lopez, the Court considered the constitutionality of the Gun-Free School Zones Act of 1990.  The Act made it a crime to knowingly possess a firearm at a place that the person knows, or has reasonable cause to believe is a “school zone”.  The statute in no way purported to regulate a commercial activity, nor did it require any link between the possession of the fire arm or the fire arm itself, to interstate commerce.  The sole basis asserted for constitutional authority was that possession of a firearm in a school zone ‘substantially affects’ interstate commerce.

In its effort to defend the statute, the government argued that a firearm may result in violent crime and that violent crime in and around a school could be expected to affect the national economy in two ways.  First, the costs are substantial and those costs are ultimately spread throughout the entire population.  Second, violent crime reduces the desire or willingness of individuals to travel to areas deemed unsafe.  Also, guns in and around schools could damage the learning environment ultimately resulting in a less productive economy.  Based on this reasoning, the government contended that Congress had a rational basis to conclude that the statute would substantially affect interstate commerce.

The opinion was authored by Justice Rehnquist.  Justices Thomas, O’Connor, Scalia and Kennedy joined in majority for the decision.  The opinion  identifies several prior cases where the Court found Federal legislation to be authorized under the Commerce Clause and argues that each involved an economic activity that substantially affected commerce.  Specific examples provided are Hodel (“intrastate coal mining”), Perez, (“extortionate credit transactions”), Katzenbach (“restaurants utilizing substantial interstate supplies”), Heart of Atlanta (“inns and hotels catering to interstate guests”) and the infamous Wickard v. Filburn (“consumption of homegrown wheat”).  The distinguishing factor in the Court’s decision to disallow the Gun-Free School Zones Act was the notion that the activity regulated was not commercial or economic activity.  With Lopez, the Court finally drew a line in the sand beyond which it would not permit to Congress to use the misinterpreted Commerce Clause to legitimize an expansion of Federal power.  If activity isn’t commercial or economic, the Commerce Clause won’t be read to authorize Congress to regulate it.

To be sure, the statists who desire an ever expanding Federal Government would like nothing more than to overturn Lopez and return the misinterpreted Commerce Clause to its former status as an infallible and infinite source of federal power – which brings us back to Peruta and its potential aftermath.  One can foresee a two stage effort statists might employ to simultaneously achieve two goals; erode the 2nd Amendment and overturn Lopez.

The first stage would employ an appeal to the Supreme Court in an effort to nationalize the Peruta decision or some variation of it.  The end goal would be a Supreme Court decision declaring that there is no 2nd Amendment right to carry a firearm, whether concealed or open carry.  If that effort succeeds, the second stage would employ Federal legislation, purportedly authorized by the Commerce Clause, to make concealed carry illegal nationally.  Because of the Supremacy Clause, any such legislation would override any state legislation recognizing the legality of concealed carry.

Of course, the Federal law banning carrying nationwide would necessarily result in an appeal to the Supreme Court based on Lopez.  It’s one thing for the Supreme Court to have ruled in the first stage that there is no 2nd Amendment right to carry.  It’s another thing altogether for Congress to assert the authority at the Federal level to ban carrying firearms.  Lopez established that there is no such authority under the Commerce Clause.  Thus, the left would seek to overturn Lopez.  If successful, the statist effort could result in a Supreme Court decision that both recognizes the legitimacy of Federal legislation outlawing the carrying of firearms and overturns Lopez thus reopening the font of illegitimate federal power that was the misinterpreted Commerce Clause.

I’m not predicting this scenario will come to pass or even that statist forces will make the effort.  But if the day comes when statists judge that the Supreme Court would seriously consider nationalizing the Peruta decision and overruling Lopez and that Congress would pass national concealed carry legislation, it would be extremely naïve to believe that they wouldn’t make the effort.  The left is nothing if not patient and should be expected to make this effort when the time is right even if not for many years.  Those who would defend the Constitution, federalism and individual liberty should be mindful of such a strategy and vigilant if circumstances develop which tend to indicate such an effort is underway.

 

 

 

 

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I live in West Virginia where state government is embroiled in a budget battle.  Tax revenues have dropped substantially.  Through the regular legislative session and 12 days of a special session, the legislature could not agree on a combination of spending cuts, tax increases and/or the use of ‘rainy day’ account funds capable of gaining a majority of both houses.  Finally, on Friday, a budget passed both houses.  It’s now on the governor’s desk.  Most anticipate a veto.

Partisan positioning based on ideology has been prevalent.  For the first time in my memory, the legislature is reflective of a two-party system and the ideological divisions that come with that distinction are still somewhat of a novelty here.  In the past, whenever revenues dropped off, the only responses likely to be considered involved revenue enhancement, i.e., tax increases.  Now, a Republican disdain for tax increases is running head long into the unfortunate and nearly universal political desire to not cut spending.  That struggle is largely new to West Virginia and the legislature has floundered in the effort to find majority support for any combination of the available approaches to deal with the reality of falling revenue.

Partisan squabbling based on achieving political advantage in the November general election has been rampant; who is ‘at fault’ for the delay in achieving a budget…who should ‘have seen this coming’ and planned for it better…who doesn’t care about the state employees who may see their pay cut or might be subjected to a furlough…who doesn’t care about education…who wants to single out smokers for taxation, etc…

Social media has been very active with budget discussions and debates among the politically inclined and those who may not typically be policitally interested but are compelled to the debate in an effort to protect their personal ox from being gored.  Local newspapers and websites have been laser focused on the daily machinations, reporting every suggested resolution and each inevitable opposing response.

Though I have no data, I’m certain delegates and senators are hearing from their constituents in a loud and clear fashion exactly how they feel about various aspects of the budget dispute.  And no doubt, those delegates and senators are feeling the electoral pressure that flows naturally from an interested and attentive citizenry.

And it’s all been a good thing.  That’s not to say that each suggested resolution, each response in opposition, each transparent effort at political posturing and every hateful private debate made public by virtue of the internet has been a good.  But what has been a very, very good thing is the process – the forest, if not each of the trees.

I’m happy for the opportunity to finally live in a state where political solutions are not forgone conclusions and therefore not subjected to public debate.  I’m happy to finally live in a state where the push/pull between balancing revenue and spending is a real contest for public opinion.  But most of all, I’m happy for the reminder which witnessing this process provides as to what self-government can and should be.

The United States was founded in part on federalism.  The federal government and the states were to share sovereignty.  The federal government was to have very limited and specified powers.  James Madison wrote in Federalist No. 45 that “The powers delegated by the Constitution to the Federal Government, are few and defined.  Those which are to remain in the State Governments are numerous and indefinite.” 

 There were a number of reasons for this approach.  Practically, the states could not be expected to ratify a Constitution that didn’t preserve for them broad powers.  Individuals generally identified the state in which they resided as where their allegiance lay.  Many were skeptical at the notion of granting the central government any additional authority beyond those anemic powers specified in the Articles Of Confederation.  Simply, the Constitution could not have been ratified were it not for the fact that the states retained substantial sovereignty.

Fundamentally, the framers recognized that there were only certain functions the central government could perform effectively.  They recognized that effective self-government implies local government and that representative government requires the people to have access to their representatives with respect to the issues that matter most in their lives.  The more local the government, the more likely the public to remain engaged, the more likely self-government would truly be ‘self-government’.  As Madison wrote, “The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the State.

Since the 1930’s the Federal Government has acquisitioned the constitutional authority of the states through many mechanisms.  The Supreme Court has regularly and intentionally misinterpreted the Constitution in order to enable the expansion of federal power.  More directly, the Federal Government has ‘purchased’ state sovereignty by returning taxed money to the states, but only with strings attached – strings which force the states to act or refrain from acting as directed by the Federal Government.  The result is an ever more powerful Federal Government acting as puppeteer, manipulating the states to yield their constitutional sovereignty in exchange for a return of moneys previously funneled from the people to Washington via the taxing authority.

That centralization of power in Washington is rendering Madison’s vision of the states legislating in all matters most important to the people a broken promise.  And as power is moved from state capitals to Washington, it’s only natural that the people become disengaged politically.  As I previously wrote Fildena 150 mg, “Centralization of everything from healthcare to public education to speed limits on local highways slowly engenders a defeatist attitude in the mind of the civically interested individual.  Her political voice, once easily heard on a local or even state level, has become a mere whisper, taking a back seat to the special interests groups and cronies who have the financial wherewithal to amplify their voices loud enough to be heard in Washington.  The ever growing and seemingly all powerful regulatory and administrative state is even worse, often leaving individuals with feelings of helplessness and inevitability.”

The West Virginia budget debate, though difficult, fraught with political infighting and subject to varying opposing perspectives, is representative government in America as it was intended to be.  Concerned citizens can be heard and can participate.  Politicians hear the voices of their constituents and expect to be held to account.  Regardless of the outcome of the debate, West Virginians should take satisfaction in the fact that their voices and their votes matter to a degree which cannot be replicated at the federal level where individual citizens are dissuaded by design from becoming involved and, when they do decide to speak, find it extraordinarily difficult to be heard.  Citizens of every state should keep this in mind when confronted with Washington’s next, inevitable effort to usurp constitutional sovereignty from the state capitals to Washington D.C.

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