A question of states rights

For example: Vermont purchased NECAP. Tennessee purchased TCAP. Montana purchased MontCAS. Only Nebraska has refrained from end-running the NAEP.

Thus, the states won out in a states rights battle: federal testing still exists, but its dismal score-results get as little publicity from the state educational establishments as possible. Only a few newspapers-with-consciences are brave enough to publish the dismal test scores.

While Montana's purchase of MontCAS was perhaps predictable, its other states rights initiative isn't. The Montana State Legislature has ruled that gun-ownership of a completely intrastate nature is immune to federal regulation, and Democratic Gov. Brian Schweitzer has signed it into law. But-but-the ACLU and other avid anti-gun advocates will not take kindly to this; the federal precedent is on their side.

Consider, for example, the 1942 decision of the U.S. Supreme Court in Wickard v. Filburn. Led by Chief Justice Harlan Stone, all nine judges agreed that USDA Secretary Wickard had the authority to regulate the household-use grain produced by wheat-farmer Filburn, in accordance with the Agricultural Adjustment Act of 1938. Even because it wasn't used in interstate commerce, it replaced wheat which Filburn would otherwise have had to buy from interstate sources and would have been regulated by USDA under the Commerce Clause of the Constitution.

The Supreme Court ruled: Filburn's criminally-grown 239 bushels violated his USDA wheat quota.

The decision had impact far beyond the World War-II era: it was the precedent-setting basis for the 2005 SCOTUS decision in Gonzales v. Raich, the case showing homegrown medicinal marijuana is a legitimate subject of federal regulation because, as with Filburn's wheat-it competes with marijuana that moves in interstate commerce.

Here's the court's explanation: "Wickard thus establishes that Congress can regulate purely intrastate activity that is not in itself 'commercial', in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the Interstate market in that commodity."

SCOTUS precedent isn't always permanent: Brown v. Board overruled Plessy v. Ferguson on separate-but-equal, and Payne v. Tennessee over-ruled Booth v. Maryland on an Eighth Amendment interpretation.

Now that states rights is a proud new principle-at least when it comes to throwing out rigorous NCLB tests in support of easier student tests-can it support Second Amendment pro-gun principles as well?

Stay tuned.

Former Vermonter Martin Harris lives in Tennessee.

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