Posted on

Texas Legislation Attacks Federal Gun Control Under the Commerce Clause

A Texas flag flapping boldly in the wind.

AUSTIN, Dec. 5, 2014 – A Texas lawmaker has pre-filed a bill for the 2015 legislative session that would exempt firearms, firearms accessories and ammunition from federal regulation if manufactured and maintained in the Lone Star State.

House Bill 421 (HB421), the Firearms Freedom Act, was pre-filed on Dec. 1 and will be officially introduced next year. It was authored by Rep. Matt Krause (R-Fort Worth).

The bill states in part:

A firearm, a firearm accessory, or ammunition that is manufactured in this state and remains in this state is not subject to federal law or federal regulation, including registration, under the authority of the United States Congress to regulate interstate commerce.

HB421 seeks to encourage firearm manufacturing and sales within the state, but it does not rely on the 2nd Amendment. It rests exclusively on the intended limitations of the commerce power delegated to Congress and clarifies that the Commerce Clause of the U.S. Constitution does not extend to products manufactured and sold entirely within Texas borders.The bill cites both the 9th and 10th Amendments and goes on to say that “the regulation of intrastate commerce is vested in the states under the Ninth and Tenth Amendments to the United States Constitution.”

A federal court had declined to hear a case on a similar bill from Montana, but Michael Boldin of the Tenth Amendment Center suggested that this has nothing to do with what can happen in practice. “In the famous 2005 Raich case, Justice Scalia and the majority held that growing marijuana plants in your backyard was considered ‘interstate commerce,’ and under the purview of federal power,” he said. “At that time, there were ten states with medical marijuana laws and not a single one repealed it as a result of this court opinion. Today, there are more than 20 states doing the same. If marijuana users can have the courage needed to defy the feds, I’m sure gun owners can do the same,” continued Boldin

THE COMMERCE POWER

The Constitution states, “The Congress shall have power… to regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes…The Congress shall have Power…to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

Robert Natelson notes in The Original Constitution that there are misconceptions of the commerce clause in the Constitution, that the regulation of commerce is not exclusively enumerated to Congress and that commerce did not include everything under the sun. The states still have immense power to regulate commerce within their own state and even with foreign nations.

Natelson writes, “Federalists repeatedly represented that the Constitution would leave the states as the sole government regulators of the vast majority of human actives. They affirmed that the central government would have almost no role over…use of personal property outside commerce, wills and inheritance, business regulation and licensing, manufacturing” and others.

Also Natelson writes, “The Constitution banned states from imposing duties on imports or exports without the consent of Congress…otherwise, states were free to regulate commerce with foreign nations–and even to impose embargoes on goods from outside–subject to preemption by Congress or by federal treaties.”

PACKAGE DEAL

HB421 works side-by-side with two other bills under consideration in the Texas House, HB413 and HB422. These bills address federal gun control from a different direction, banning the state from helping the federal government enforce its acts, laws, rules, regulations, and orders. (Learn about those bills here)

Each bill addresses federal gun control in a different way and acts as an important roadblock to federal enforcement. Boldin considered this a positive step forward. “These people have been chipping away at our natural rights since 1934 and before,” he said. “Every step towards rejecting their unconstitutional and immoral power brings us a step closer to liberty.”

ACTION ITEMS

For Texas: Contact your state representative, and urge them to co-sponsor HB421. Then, contact your state senator and urge them to introduce similar legislation in their chamber. You can find their contact information HERE.

ALL OTHER STATES: Contact your state legislators and urge them to introduce a bill defending gun rights during the 2015 legislative year, such as our 2nd Amendment Preservation Act. You can find their contact information HERE.

NEXT STEPS: