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DaretothREdux (48.20)

I HEART Montana!



May 08, 2009 – Comments (19) | RELATED TICKERS: MON , TAN , A

I don't have a lot of time, so will make this quick.

Excerpts from here. Commentary in bold.

The state of Montana has decided to pick a fight with the Federal Government. The Montana State Legislature recently passed legislation, which was signed into law by the Democratic Govenor Brian Schweitzer, which exempts citizens of Montana from federal background check requirements if a gun was made in Montana, sold to a resident of Montana, and intended to remain within Montana.

The idea behind this is that if the gun remains within the state then the commerce clause of the U.S. constitution does not apply and the Federal Government would not be allowed to regulate the sale or distribution of these firearms. This is an interesting concept, and is sure to generate a fight. This one could get really ugly, really fast.

I'm sorry what's that US gov't? You say that states rights are dead? I don't f^&king think so!

Montana is claiming that this is less of a gun control issue and more of a state’s rights issue.  That may be the case, but I can’t think of a quicker way to generate a federal fight that is on the express lane to the Supreme Court than something like the sale of guns.  For once it appears that legislators actually had some logical thought processes when they came up with this plan.  Great work Montana.  I also find it interesting that the Governor of Montana is a democrat and he is supporting this legislation on the basis that the states should be free of such federal conrol

States should be free of such federal control. The interstate commerce clause is possibly the most abused clause in the entire Constitution, and it's time to return to what our founders intended for the states to be, and that's individual states with their own laws free from the powers of a central gov't.

To put it another way, the federal gov't and the supreme court have ruled many times in the past that all the states were going to be whitewashed and made to follow estentially the same laws (federal), and Montana has just said "um...screw that I think we are going to be RED instead of white."

Not surprising from the state which was first to remove federally imposed speed limits even though the gov't threatened to remove interstate funding....(lol as if the federal gov't would let the interstates go to ruin...).

I know that similar arguments were made when the issue of Marijuana grown and used (is that the term you would use?) in California does not fall under federal authority because it does not enter the stream of “interstate commerce” which would allow federal regulation.  The argument failed because the Supreme Court stated that pot grown in California was indistinguishable from pot grown outside of California.  The Montana gun manufacturer would get around this requirement by a “Made in Montana” stamp which is clearly place on the gun.

See, and you thought there was no reason that the pot-heads and gun nuts would ever get together! Well...bring on the pot-smoking gun toters cause mama always said "freedom is as freedom does!"


19 Comments – Post Your Own

#1) On May 08, 2009 at 6:16 AM, DaretothREdux (48.20) wrote: was Nevada who ignored the gov't first.

But Montana had extremely low fines in place for speeding before that to counter the federal law.

Even so...keep up the good work Montana!

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#2) On May 08, 2009 at 7:48 AM, DaretothREdux (48.20) wrote:

And here is the MSNBC story. Although I'm not sure who is more credible at this point...msnbc or a blogger...

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#3) On May 08, 2009 at 9:51 AM, Gemini846 (34.27) wrote:

Nice find. I'll have something about this up on facebook by the end of the day.

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#4) On May 08, 2009 at 10:17 AM, DaretothREdux (48.20) wrote:

Thanks Gemini846,

Always good to have boots on the ground (or in cyberspace) fighting for a good cause.

Go Cyberboots Go!

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#5) On May 08, 2009 at 11:47 AM, devoish (65.42) wrote:


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#6) On May 08, 2009 at 11:50 AM, PrestonCheek (30.81) wrote:

Ok, well my first comment got eaten.

Dare, sorry I have not been able to keep up with your work lately, I will take some time soon and get caught up.

I hope everything is good with you and your family.


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#7) On May 08, 2009 at 4:00 PM, muzzybelly (26.05) wrote:

Cute stunt.  Too bad it ignores about 200 years of legal precedent.

The state of Montana does not have the right to create constitutional rights or determine the extent of federal commerce clause power.  Only the Supreme Court can do that.  Well, at least since Marbury v. Madison.

There is absolutely no question that this regulation would get struck down 9-0, if the Court were to hear it which it won't.  Montana has no power to control the flow of guns in and out of its borders.  Whether or not it intends for the "Montana guns" to leave the state, they will.  And that puts them into interstate commerce.  And that undermines the federal gun control laws.  And no state can place its laws above those of the federal government.

This will make good material for Jon Stewart.  That's about all.

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#8) On May 08, 2009 at 8:41 PM, DaretothREdux (48.20) wrote:


We shall see. My friend that told me about this is an attorney who just graduated from law school. And I seriously doubt it would be a 9-0 descision as those are extremely rare. If the guns left Montana you could arrest those people, but they don't have to leave Montana. In fact many people who own guns never take them outside of their state.

Simply, by passing this law Montana has already wiped hundreds of federal laws off the books (as apply to them). And like it or not this is what the founding fathers intended for a state to be able to do.


Great vid!


Thanks man. I have actually been slacking off lately (at least I feel like I have been), but soon I will be blogging more regularly once again.

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#9) On May 08, 2009 at 11:27 PM, muzzybelly (26.05) wrote:

The founding fathers did not intend a state to be able to "wipe" federal laws off the books.  They intended the opposite.  We know this because they included the Supremacy Clause, which expressly states that, in event of a conflict between federal and state law, federal law always wins.  We also know this because they created a U.S. Supreme Court and gave it, and it alone, the authoritative power to interpret the constitution. 

9-0 decisions are not extremely rare.  You just don't hear about them very often.  In reality, most cases in which all Justices agree don't make it to the Court.  The Court declines to hear them.  That's exactly what they would do here. 

Obviously I can't speak for your just-graduated friend.  If it matters to you, I have litigated in the Courts of Appeals and at U.S. Supreme Court.  But don't take my word for it.  Your friend should be able to tell you that the Court does not look kindly upon challenges to its authority (City of Boerne), does not look favorably upon claims that commercial items ever remain fully intrastate (Willard v Fickburn), and will be extremely skeptical of any Montana law that has even the slightest potential to undermine comprehensive federal legislation (Gonzales v Raich, and about a dozen preemption cases in the past 15 years).   Prosecuting smugglers won't cut it.

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#10) On May 09, 2009 at 3:33 AM, DaretothREdux (48.20) wrote:


I don't doubt you are right. Except for the founding father's intentions part. They clearly wanted the states to be able to make their own laws and federal law has been taken too far, depeding on how broadly you wish to interpret the constitution. The interstate commerce law is about as broad an interpretation as it gets.

My friend would agree with you and so would I that the federal gov't tries to expand its power every opportunity they are we would also both agree that that is not how it should be. Montana is doing a good thing here, even if it doesn't come to fruition at least they are putting up a fight. Liberty may have its day once again, but not if we continue to slide into tyranny without putting up a fight.

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#11) On May 09, 2009 at 4:03 AM, whereaminow (< 20) wrote:

There is a great deal of historical evidence that dispute muzzybelly's interpretation of the Founding Father's view of central government supramecy. Muzzybelly's interpretation is the standard historical view summarized by Schwiekart and Allen.

By Schweikart and Allen’s account, the U.S. Civil War was inevitable because “[n]o amount of prosperity, and no level of communication could address, ameliorate, or cover up the problem of slavery.”  And make no mistake about it, they assert: slavery, and not states’ rights, was the issue.  “[W]henever the historical record says ‘states’ rights’ in the context of sectional debates,” they write, “the phrase ‘rights to own slaves’ should more correctly be inserted.”  “It is not an exaggeration,” they write, “to say that the Civil War was about slavery and, in the long run, only about slavery.”  - Larry Schweikart and Michael Allen, A Patriot’s History of the United States: From Columbus’s Great Discovery to the War on Terror (New York: Sentinel, 2004), pp. 294, 257, 302.

On the other side of the Historical Record are Thomas Zinn, Gore Vidal, Thomas Woods, and a host of other revisionists.

Like Vidal and the revisionists, Zinn regards the U.S. Civil War as having been touched off by something other than slavery.

Behind the secession of the South from the Union, after Lincoln was elected President in the fall of 1860 as candidate of the new Republican party, was a long series of policy clashes between South and North.  The clash was not over slavery as a moral institution – most northerners did not care enough about slavery to make sacrifices for it, certainly not the sacrifice of war.

Among the “policy clashes” Zinn names are “free land” (Southerners believed public lands being opened to settlement should be sold, not given away), “a high protective tariff for manufacturers,” and “a bank of the United States” (both rejected by Southerners as not in their economic interest).  He quotes Lincoln’s statement to Horace Greeley that “[m]y paramount object in this struggle is to save the Union, and is not either to save or destroy Slavery.  If I could save the Union without freeing any slave, I would do it […].” And he comments: “The American government had set out to fight the slave states in 1861, not to end slavery, but to retain the enormous national territory and market and resources.”  - Howard Zinn, A People’s History of the United States, 1492-Present. Twentieth Anniversary Edition. (New York: HarperCollins, 1999), pp. 188-189, 191, 198.

The problem in discerning which view is correct is not in understanding which one is factual.  They are both factual.  The problem is in the selection of facts, an exercise in supposed objectivity that is an impossible standard in the analysis of history.  The problem of objectivity:

It is two decades now since University of Chicago historian Peter Novick published his landmark work That Noble Dream, a gloomy analysis of “the objectivity question” and its importance for the American historical profession.  In 1989, That Noble Dream won the American Historical Association’s prize for the best book of the year in American history.  From the date of its original publication a year earlier, it attracted much, and heated, attention.  Yet, in all the years that have passed since its first appearance, little or no progress has been made toward any sort of solution for the conundrum Novick posed in his book.

On the one hand, Novick argued, the “ideal of ‘objectivity’” had long been “the rock” on which “the professional historical venture” in this country “was constituted, its continuing raison d’être.  It has been the quality which the profession has prized and praised above all others – whether in historians or in their works.  It has been the key term in defining progress in historical scholarship: moving ever closer to the objective truth about the past.” (Peter Novick, That Noble Dream: The “Objectivity Question” and the American Historical Profession (Cambridge, UK: Cambridge University Press, 1988), p. 1.)  On the other hand, this ideal of objectivity is “essentially confused.”  It is based on “philosophical assumptions” that are “dubious.”  It is “psychologically and sociologically naïve.  As a practical matter, I think it promotes an unreal and misleading invidious distinction between, on the one hand, historical accounts ‘distorted’ by ideological assumptions and purposes; on the other, history free of these taints.” Ibid., p. 6.

For, of course, there is no history that is free of such “taints.”  In a post to an e-mail discussion group on December 12, 1995, Novick noted that

[i]n writing a work of history, the historian inevitably […] is radically selective, choosing from among the infinite number of (“true”) facts which could be recorded a small portion which he or she will record. Further, also inevitably, some are centered, others marginalized. And all of them are necessarily arranged, in different ways. Selection, centering, and arrangement are inherent in the process; and are typically decisive in determining the sort of picture which emerges. (See

And yet, to say all this is barely to have scratched the surface of the problem.  For before the historian can select, center, marginalize, or arrange the facts, he or she must first ascertain the facts.  And this is by no means as unproblematical a matter as at first it might seem. - This is from chapter one of Jeff Riggenbach's new book, Why American History Is Not What They Say: An Introduction to Revisionism.

Rather than understanding these problems and how they affect the versions of American history we have learned, most people would prefer to marginalize others who differ in beliefs by referring to them as "nutjobs."  I'm thankful nobody on this blog has stooped to that level.

David in Qatar

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#12) On May 09, 2009 at 11:15 AM, muzzybelly (26.05) wrote:

There is no dispute that the founding fathers believed that federal law should trump state law.  That's right there in the Constitution. 

That is separate from the issue of how far the federal power should extend.  You can believe that the fathers wanted the federal power to be limited, and still recognize that they thought federal law should trump state law.

There are two problems with the 'Founding Fathers didn't want big government" argument.  First, it has a very restrictive and tendentious view of who counts as founding fathes.  John Marshall, America's first great jurist and the Chief Justice of the Supreme Court during most of America's early years, was an advocate of a strong federal government and his opinions typically upheld an expansive notion of federal power.  States rightsers don't like to count him as a Founding Father, even though his views have shaped American law much more than some of the nobodies that happened to be at the Constitutional Convention.

Second, of course, we don't really know what the Founding Fathers would think about the extent of federal power in today's world.  Many of the Founding Fathers, especially Hamilton, were in favor of very aggressive and centralized fiscal policy.  In the 18th Century, that did not include extensive regulation of markets.  But of course, in the 18th Century, there were very few markets.  The vast majority of commerce was local and very few, if any, goods were traded on a national market.

Finally, I have to dispute the claim that states rights = liberty.  Throughout history, states rights has meant liberty for whites.  The southern states seceded from the union because they wanted to preserve their states rights to slavery.  In the 1950s and 1960s, the advocates of states rights were also opponents of the civil rights movement.  It's interesting that states rights had fallen out of civil discourse almost completely during the 1930s and 1940s.  It was only picked up, by Southerners, as soon as Jim Crow was threatened.

That's not to say that states rights people today are bigots.  But it's entirely clear to me that liberty is a function of the substance of the laws passed by the legislature, not a function of which legislative body makes the laws.  States can be tyrants too.  That's why opponents of gay marriage took their case to the federal level, to pass the Defense of Marriage Act and pressed a constitutional amendment on the matter.  They were all for states rights when it worked for them, but all for federal power when it didn't. 

Most states rights conservatives are not consistent about their issue.  States rights for abortion and civil rights and guns and unemployment benefits.  But what about the states' ability to administer tort law?  Apparently not, because the conservative movement (and the libertarian one, by the way) strongly favors federal tort reform.  Partial birth abortion was pushed through on a national level.  So on and so forth. 

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#13) On May 09, 2009 at 11:32 AM, whereaminow (< 20) wrote:

Wow, you didn't read a word I wrote, or a word of Zinn, Vidal, Novick, Woods, etc..

No point in continuing this conversation.

I'll tell you what. I'll be sporting. If you can accurately summarize the Non-Aggression Principle (the core philosophy of Libertarianism) and give a thoughtful critique including the similarities and differences it has with the Republican and Democratic platforms, I'll reconsider.

David in Qatar

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#14) On May 09, 2009 at 1:26 PM, muzzybelly (26.05) wrote:

You're right, didn't really read it.  Your post looks like jibberish.  Maybe it's not, but after a first skim, I couldn't see how it was relevant.  In fact, I couldn't tell what you were trying to say.  It would be easier if you cut out all the quotes from people who mostly I have never heard of (and thus do not care what they have to say) and stated your ideas clearly.  I have read That Noble Dream but I don't see how it is more than tangentially related to this discussion. 

I'm not really interested in a discussion of the "core philosophy" of libertarianism.  That's in part because I'm not all that interested in libertarianism.  Most who firmly reside in the real world share my general disinterest, which is why 50 years of libertarian activism has never resulted in any electoral victory in any non-local election anywhere.  Maybe there were one or two somewhere, I'm sure you'll tell me. 

I am interested in the Montana statute.  Hence my posts. 

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#15) On May 09, 2009 at 9:19 PM, DaretothREdux (48.20) wrote:

Damn...well it looked like we were going to have a civil rationale intelligent discussion (which is what I usually hope for), but clearly that's not the way its going to be.

If I find more on the Montana law and/or federal decisions related to it, then I will post again and maybe we can try again...

BTW muzzybelly,

Zinn is a pretty well respected "liberal" historian. My high school AP US history teacher used his book as a supplement to the regular text. So, saying you have never heard of him says more about your age than about how much you have studied history. Which, is also kinda David's point about historical revisionism.

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#16) On May 09, 2009 at 10:29 PM, bew2005 (< 20) wrote:

Montana has taken an interesting action, and I look forward to discussing its implications.  Before I do, let me congratulate muzzybelly for arguing before the USSC - it is a distinct honor for which you should be very proud.  I do take some issue with some of your claims and would ask you to expand upon them:

The founding fathers did not intend a state to be able to "wipe" federal laws off the books.  They intended the opposite.  We know this because they included the Supremacy Clause, which expressly states that, in event of a conflict between federal and state law, federal law always wins. 

I could not agree more.  No state law may trump a federal law.  The Constitution is quite clear on this matter.  Otherwise, there would be no point in having a federal government at all.  However, when the various states which now make up our Union voted on whether or not to join, they did so under a social compact: the Constitution.  The Constitution was the framework for our federal system, and any state joining our union agreed to abide by it and expected the federal government to do the same.  Furthermore, the Constitution specifically removed certain powers from individual states and placed them with Congress.  Most of these are found in Article 1.  In other words, Congress is a body with limited enumerated powers - a phrase which muzzy is certainly familiar.  It cannot pass legislation on any matter it so desires.  It must point to the specific grant of authority in its social contract with the states in order to pass legislation.  As made clear by the 10th Amendment to the Constitution, all powers not specifically granted to Congress remained with the states.  States did not agree to give up all legislative authority when they joined this Union - in fact, the opposite is true.  States are the true holders of police power under our system and should be the only ones allowed to legislate on issues of morality.  They are free to pass ANY legislation they choose so long as it does not conflict with federal law, which was supposed to be constrained to a limited list.

 We also know this because they [founding fathers] created a U.S. Supreme Court and gave it, and it alone, the authoritative power to interpret the constitution. 

Where exactly in the Constitution was the Supreme Court given the authoritative power to interpret the Constitution?  Furthermore, must not every branch of government and every citizen interpret the Constitution? 

Obviously I can't speak for your just-graduated friend.  If it matters to you, I have litigated in the Courts of Appeals and at U.S. Supreme Court.  But don't take my word for it.  Your friend should be able to tell you that the Court does not look kindly upon challenges to its authority (City of Boerne), does not look favorably upon claims that commercial items ever remain fully intrastate (Willard v Fickburn), and will be extremely skeptical of any Montana law that has even the slightest potential to undermine comprehensive federal legislation (Gonzales v Raich, and about a dozen preemption cases in the past 15 years).   Prosecuting smugglers won't cut it.

Simply because something has been done a certain way for an extended period of time does not make it right.  If it did, the world and this nation would be a sad place.  Furthermore, USSC decisions are the very ammunition which have allowed Congress to pass much of this "comprehensive federal legislation."  Nearly every time Congress would pass legislation pushing the bounds of its powers the USSC would make a mockery of the Commerce Clause in order to justify Congress' actions.  Unfortunatley to the monolith known as the United States Code, much of it has been created due to a long series of poor interpretations of the Constitution by Congress and the USSC.  Had the USSC struck Congress' acts down when they were passed rather than the course they chose, we would not have mounds and mounds of unconstitutional "comprehensive federal legislation."  And yes, I understand that the USSC has deemed this legislation constitutional, but I fail to see where in the Constitution the USSC was given final say on such matters.  Also, what is and is not constitutional is subject to change according to every USSC - therefore, a change to what the document actually says would be a breath of fresh air.

 States can be tyrants too.

On this, we agree 100%.  However, so long as those states do not violate constitutional rights granted in the federal or their own state constitutions, then they should be allowed to act as such.  Our federal system was created so that each state could be unique.  Justice Brandeis put it this way: "[i]t is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." Our system was created so that the states could be very different and unique. States could choose whether or not to allow marijuana growth, abortions, gay marriage, gun control levels etc. and people could choose to live in states with laws most suitable to their desire. Unfortunately, the Feds have taken all the power and white washed the whole country. Maybe Montana is trying to get out its own paint brush? Maybe other states will too.

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#17) On May 09, 2009 at 10:53 PM, whereaminow (< 20) wrote:


Close. My point wasn't that he is old, but that he is ignorant, which he then confirmed.

David in Qatar

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#18) On May 11, 2009 at 1:07 PM, muzzybelly (26.05) wrote:

I've heard of Zinn.  I haven't read his book.  Zinn is not a liberal.  He is a New Leftist, more in the mold of Genovese or Eric Foner.  I don't know the others.  Not that it matters, I am neither liberal nor leftist.  I used to think of myself as a sort of moderate conservative.  That was before Bush and the Party of No.  Now I'm sort of a moderate liberal.

I never argued before US Sup Ct.  I wish.  I have worked on merits and amicus briefs for that court.  I have my name on several.  But I'm a long ways yet from arguing my own case. 

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#19) On May 11, 2009 at 1:27 PM, muzzybelly (26.05) wrote:

States aren't free to pass any law they wish.  They are constrained by the Bill of Rights.  I know that some die hard conservatives insist otherwise, but that's more or less a dead letter.  Even Justice Thomas believes the Bill of Rights applies to the states, and there has never been a more hard-core originalist justice on the Court, nor one who is so intentionally dismissive of judicial precedent.

The notion that the Supreme Court is the final, authoritative interpreter of the Constitution has been accepted ever since Marbury v Madison.  That was 1803.  John Marshall, one of our great Founding Fathers, wrote the opinion.  James Madison was the Secretary of State and the nominal defendant, and Thomas Jefferson was the president; both accepted the decision.  It is quite likely that Marbury merely formalized a common understanding.  Even John Yoo thinks that judicial review was an accepted concept well before Marbury. 

It's important to distinguish two questions.  First, do the federal gun control laws overstep Congress' power.  Second, does Montana have the power to declare that a federal law has exceeded federal power, or to pass federal-law-nullifying legislation?  The answer to the second question is clearly no, and that's really all there is to the Montana statute.  That's why it is little more than a political stunt.

Most people here and in the press have focused on the first question.  That's a little bit of a closer question.  But only a little bit.  Whatever one thinks of the "states-as-laboratories" argument (and I think fairly highly of it), it should be evident that state laws that have spillover effects outside the state are and should be the subject of federal legislation.  If South Carolina wants to experiment with its state by removing all environmental legislations and turn the entire state into a garbage dump for the other 49, you might say that's its choice.  But if, as a result, pollution and disease are spreading out of SC into border states, states rights is no longer applicable.

It's fairly clear that if Montana manufactures guns that are not subject to any regulations on use, registration and sale, the efforts of the other 49 states to implement their own gun control is absolutely nullified.  Another way of putting it is that guns are items in interstate commerce and Montana has no way of preventing its guns from being the subject of interstate commerce.  Federal legislation is appropriate. 

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