Texas Legislature To Challenge Commerce Clause Over Guns

Austin - Following a stint as a Captain of Texas Rangers, Samuel H. Walker found himself wanting a more powerful handgun for his dragoons who were fighting the Mexican War at Veracruz in 1846.

He traveled north and east to see Samuel Colt at Hartford, Connecticut, and the two designed the ultimate revolver for cavalrymen, the Walker Colt.

It was a cap and ball pistol so large and heavy at 4.5 pounds unloaded that it was carried in holsters mounted on the saddle horns of troopers' mounts. Nevertheless, it was considered as accurate as a rifle at 100 yards and at 50 yards it was formidable, with an ability to bring down a man, his mount, or anything else living and breathing that got in the way.

Only 1,100 of the fearsome weapons were made originally. They bring about $150,000 as antiques, one carried by a trooper in the Mexican War having sold at auction for nearly $1 million.

The main consumer was the Republic of Texas, a mythic political anachronism from the dim recesses of constitutional lore all but forgotten anywhere but in this Lone Star State of Texas.

And then there is the all but forgotten and vilified myth of the gun, that totem, tool and piece of business equipment carried in the open on every hip during the settlement of the new frontier with Mexico once President Andrew Jackson and his trusty brethren who signed, revolutionized and held out for a constitutional republic to replace the border at the Sabine River and push it back hundreds upon hundreds of miles inside Mexican territory.

Now a 4-term State Representative from Rockwall and Collin Counties has joined the fray. She is looking to make some changes as hefty as the Walker was in its day in a challenge to the “commerce clause” of the U.S. Constitution, that pesky jumble of words found in Article 1, Section 8, Clause 3 that gives to Congress as an enumerated power the right to “regulate commerce...among the several states...”

Rep. Jodie Laubenberg, a free market conservative from Parker, has pre-filed House Bill 145, a Firearms Freedom Act similar to one passed in Montana from model Tenth Amendment Center legislation that would exempt firearms and ammunition manufactured, marketed and retained in Texas from all federal regulation of any type, including 18 USC 922, the federal statute that makes it illegal for anyone to manufacture or deal in firearms without a federal firearms license (FFL).

How did the federal government get involved in so many businesses and manfacturing concerns?

Legal experts say it was all part of the New Deal, a key piece of legislation of which was inspired by the legal arguments of a University of Chicago law professor who persuaded Congressmen and judges that “commerce” included all gainful economic activities, not just interstate trade defined as sales of goods and and the performance of services carried out across borders of U.S. political subdivisions, the states.

The issue was growing wheat in one's own back 40 for in-house consumption – and not for sale - something disallowed under the price support program of the first of the New Deal farm bills. The Courts held with the government and the rest is history in areas as diverse as civil rights and manufacturing, mining and marijuana, Obamacare and Cap & Trade.

It is now “necessary and proper for Congress to regulate everything that substantially affects commerce,” according to Rob Natelson, free market activist and constitutional scholar, author of numerous books on the subject while a professor at the University of Montana and now employed by the Independence Institute in Colorado.

It's all part of a nationwide attack on the influence of the commerce clause and Virginia is leading the charge with HB1438, the work of Delegate Mark Cole, which would make all such activities exempt from federal regulation if they are carried out on an intrastate basis with no interstate involvement whatsover.

This law is also pre-filed and ready to go as soon as the Virginia legislature comes into session in January. Similar intrastate commerce bills were filed in 2010 sessions of the legislatures of Wyoming, Oklahoma and Georgia. Firearms Freedom Acts are now law in Montana, Idaho, Wyoming, South Dakota, Utah, Tennessee and Arizona.

Watch these columns for news on the subject. We await further developments with alacrity.