By General Mike Flynn
If there is one belief that unites all American patriots, it is that the Federal Government has grown too big, too powerful, and too expensive, and must be reduced to the size which the Constitution authorizes. The 80-year-old nonprofit organization which I head, America’s Future, is now asking a federal circuit court to drive a stake into the heart of the central constitutional justification relied on to create our bloated Federal Government — the Commerce Clause.
America’s Future recently collaborated with other nonprofit groups to file an amicus curiae brief in the Fifth Circuit, in what could become one of the most important Constitutional cases of the decade: United States v. Squire. There, a man in Louisiana was charged with violation of the Gun Control Act of 1968, which bans certain persons from possessing firearms. Federal courts follow the absurd rule that if a firearm had ever, even once, crossed a state line, the Commerce Clause empowers Congress to criminalize the possession of that firearm by certain persons.
America’s Future has filed scores of briefs like this supporting the Second Amendment rights of Americans, but this case could bring us a win much broader than firearms. It provides patriots with a chance to get the Supreme Court to reverse some of its illegal Commerce Clause case law.
Here is what we argued to the court. The Constitution gives Congress the power “to regulate Commerce with foreign Nations, and among the several States.” The original understanding of the Commerce Clause was to ensure that there were no barriers to trade among the states — that America had a free market operating inside the United States. As we pointed out to the circuit court, James Madison explained in Federalist No. 42 that: “[a] very material object of [the Commerce Clause] was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter.” The goal was to “provide for the harmony and proper intercourse among the States.”
The federal courts have made up three Commerce Clause “tests” which have been used to expand the powers of the federal government – tests which are nowhere to be found in the Constitution. Courts now claim that Congress can control: (i) the channels of commerce; (ii) the instrumentalities of commerce; and (iii) anything that has a “substantial effect” on commerce. Well, that’s about everything. Understood that way, Congress has regulated just about every aspect of our lives, from banning incandescent light bulbs to creating almost any crime that comes to mind.
Beginning with FDR’s New Deal, using this expanded Commerce power, the Federal Government has seized what had always been termed the “police powers” of each state. These police powers were among those “powers not delegated” by the Constitution to the national government, being “reserved to the States respectively, or to the people” under the Tenth Amendment. By allowing Congress to criminalize possession by some persons of every firearm that even once moved across a state line, the federal courts have undermined the retained powers of the states. This massive expansion of federal power has led to a flood of federal agencies and federal prosecutors exercising all the new powers Washington had seized. This is one of the key reasons that our national debt was reported earlier this week to have passed $40 trillion.
Of course, the Fifth Circuit cannot overrule the Supreme Court, but our hope is that the Fifth Circuit will follow one of the only good Supreme Court decisions on the Commerce Clause — United States v. Lopez, 514 U.S. 549 (1995). The Lopez court struck down the Gun-Free School Zones Act, ruling: “[t]he possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce.”
The Lopez case should apply here, where Squire was charged with possession of a firearm that someone else had brought into Louisiana. Just like the defendant in Lopez, his possession had nothing to do with interstate commerce. If the Fifth Circuit accepts the invitation in our amicus brief to declare that the Lopez case controls, and simple possession of a firearm is no longer subject to regulation under the Commerce Power, the Squire case could go to the Supreme Court. If gun rights are protected by narrowing the Commerce Power, other rights would also be protected.
The Squire case gives us a golden opportunity to get federal courts to reverse a series of radical decisions that have expanded the size of our Federal Government. I am proud to lead America’s Future’s fight to cut the government down to size and reduce its ability to control how Americans live our lives.
