A: Both are regulated under Interstate Commerce. So can a state claim regulatory authority over guns that don't leave its borders? And what does this have to do with CO2?
We take it for granted that environmental law is justified at face value - we regulate pollution because it's harmful, right? Nope. Just because it may be harmful doesn't mean the federal government doesn't have to justify its actions in federal court.
The Interstate Commerce Clause is the most important source of modern federal environmental power, as this recent SCOTUS ruling on what constitutes "navigable waters" under the Clean Water Act shows. Since there's no direct constitutional basis for regulating air, water or solid/toxic waste pollution per se (though some have tried to "green it up"), Congress uses the notion that since pollutants can cross state boundaries (by truck for disposal for example), or can leach into interstate navigable waters, or are "products" that are part of interstate commerce (an air-polluting power plant provides electricity throughout the Tennessee Valley), the federal government is constitutionally authorized to regulate them. It also gives Congress power to manage environmental impacts through administrative law (CERCLA, SARA, etc).
Essentially the same thought process applies to guns. Yes Virginia, there was a time when everybody packed heat, and the federales didn't have their hands in everybody's gun cabinet.
Well, this whole interstate commerce thing has emerged as an issue this week because Tennessee, followed closely by Montana and soon Texas, has enacted a state law that says guns and ammo produced and used solely within the state are not subject to federal regulation.
Now even I would be insane to suggest that environmental laws aren't Constitutional at this point. There's plenty of precedence for that in law now.
What is important here is that state governments are beginning to make the case that they are autonomous, and that the federal government only has the powers given to it by the states, not the other way around. Think about it. Voters in a state can enact most any law we want under our own state constitutions. We can amend our own state constitutions to regulate things. Heck - we could make a law against Cheerios if we wanted to.
But we haven't. Environmentalists have historically deferred to the feds because of the reliance on the interstate commerce basis for these laws, to the point where it's a bad habit. California for instance has been doing battle with the feds over regulation of air pollution standards and greenhouse gases for years. Several governors in the Northeastern US sued the feds to get EPA to regulate CO2 as a hazardous greenhouse gas, with some success. The implication is that CO2 constitutes the ultimate interstate commerce issue. Your car in Texas is creating CO2 that's harming caribou and polar bears in Alaska.
I'd suggest that they're barking up the wrong old growth tree. What Tennessee is doing with guns - or what Texas Gov Perry is doing to assert state sovereignty under the 10th Amendment for that matter - is a golden opportunity for all you blue state voters out there over climate change gasses.
If you're a climate-change-majority state, why not simply amend your own state constitution to regulate greenhouse gasses, and ignore the federal government completely? Sure, you may not get federal funds, but hey - the feds are broke anyway.
Let me tell you one other reason to do this. A good number of conservatives are also federalists who might be willing to support any legislation that gets the federal government out of state business. There are plenty of conservatives who are interested in getting off the carbon economy for national security or energy cost reasons too. Perhaps we have an opportunity here to let a common enemy (of sorts) form a pair of strange but effective bedfellows in the fight against CO2 pollution.
The biggest problem I see with this is that President Obama is going to appoint SCOTUS judges who see all issues as federal issues. In other words, the very guy climatists are banking on to give them the CO2 regulatory framework they want is the same guy that is mostly likely to appoint judges who will take away their own state's right to do that already.
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