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Eight States Revive Jim Crow’s Constitution To Enact Unconstitutional Gun Law

By Ian Millhiser and Tanya Somanader  

"Eight States Revive Jim Crow’s Constitution To Enact Unconstitutional Gun Law"

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Segregationist Virginia Senator Harry Byrd

Montana’s Gary Marbut wants to sell his homemade rifles, but he doesn’t want to follow federal laws that require him to “to record transactions, pay license fees and open his business to government inspectors.” So Marbut’s come up with an unusual solution — convince state legislatures to pass an unconstitutional law saying he’s free to violate federal law:

A personal firearm, a firearm accessory, or ammunition that is manufactured commercially or privately in Montana and that remains within the borders of Montana is not subject to federal law or federal regulation, including registration, under the authority of congress to regulate interstate commerce. It is declared by the legislature that those items have not traveled in interstate commerce.

Marbut’s bill, which is now law in eight states, runs headlong into the Constitution. For nearly 200 years, the Supreme Court has recognized that Congress has the power to regulate commerce that “concerns more States than one,” and this includes sweeping authority to regulate local merchants who sell products in the nation’s gun market. Without this power, Congress cannot prevent a barbecue restaurant in Alabama from only serving white patrons, and a long list of laws ranging from “the Fair Labor Standards Act, the Age Discrimination in Employment Act, the Controlled Substances Act, the Endangered Species Act, the Consumer Product Safety Act and the Americans with Disabilities Act [and] the Civil Rights Act of 1964, which outlawed segregated hotels, restaurants and theaters” are endangered.

Yet, while Marbut’s bill is clearly and unambiguously unconstitutional, it is not unprecedented. Just as Marbut objects to the Supreme Court’s understanding of the Constitution today, in 1956, Virginia lawmakers objected to a different Supreme Court decision — Brown v. Board of Education. Rather than acknowledging that they are bound by the Constitution, these lawmakers instead enacted a “resolution of interposition” claiming that they were “duty bound” to defy the Supreme Court. That resolution included many of the same attacks on Congress’ power to regulate commerce that Marbut repeats today:

[W]e have watched with growing concern as the power delegated to the Congress to regulate commerce among the several States has been stretched into a power to control local enterprises remote from interstate commerce; we have witnessed with disquietude the advancing tendency to read into a power to lay taxes for the general welfare a power to confiscate the earnings of our people for purposes unrelated to the general welfare as we conceive it. [...]

Virginia can remain silent no longer. Recognizing, as this Assembly does, the prospect of incalculable harm to the public schools of this State and the disruption of the education of her children, Virginia is duty bound to interpose against these most serious consequences, and earnestly to challenge the usurped authority that would inflict them upon her citizens.

Interposition is no more constitutional now than it was five decades ago — the states simply do not have the power to give the middle finger to the Constitution and the Supreme Court. Sadly, however, Marbut’s apparent belief that the Constitution says whatever he wants it to say is now shared by eight states.

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