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http://ssrn.com/abstract=1696012
 
 

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Arming States’ Rights: Federalism, Private Lawmakers, and the Battering Ram Strategy


Barak Orbach


University of Arizona

Kathleen S. Callahan


University of Arizona - James E. Rogers College of Law

Lisa M. Lindemenn


University of Arizona - James E. Rogers College of Law

November 15, 2010

Arizona Law Review, Vol 52, p. 1161, 2010
Arizona Legal Studies Discussion Paper No. 10-36

Abstract:     
This Essay provides an initial account of a strategic apparatus crafted by private lawmakers to influence federal policy. The “battering ram strategy” employs the legal powers of states and localities to challenge and weaken federal laws. Recently, a specific weapon, the “Commerce Battering Ram,” has developed to challenge current Commerce Clause jurisprudence, using the heft of the Tenth Amendment and numerous state legislatures to propel its argument forward. The weapon’s strength is augmented by the ability of private lawmakers, facilitated by Citizens United, to stack state legislatures with senators and representatives who are sympathetic to their goals. The Essay documents the core of a particular Commerce Battering Ram, the Firearms Freedom Act movement, which has proliferated and armed other Tenth Amendment platforms with a similar formula for challenging federal laws. This formula was drafted and promoted by a private citizen with a specific gun rights agenda. State legislators have enacted and cloned the formula, and its model has been adopted to challenge federal law in other regulatory domains, most notably healthcare reform. The compounding effect of these Commerce Battering Rams has not been studied. However, if their proponents - largely members of the Tea Party movement - are successful in their attempt to break through the walls of federal law, the result may have an enormous unintended impact on the American people.

Number of Pages in PDF File: 46

Keywords: Commerce Clause, Tenth Amendment, Second Amendment, Tea Party, Firearms Freedom Act

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Date posted: October 23, 2010 ; Last revised: November 22, 2010

Suggested Citation

Orbach, Barak and Callahan, Kathleen S. and Lindemenn, Lisa M., Arming States’ Rights: Federalism, Private Lawmakers, and the Battering Ram Strategy (November 15, 2010). Arizona Law Review, Vol 52, p. 1161, 2010; Arizona Legal Studies Discussion Paper No. 10-36. Available at SSRN: http://ssrn.com/abstract=1696012

Contact Information

Barak Orbach (Contact Author)
University of Arizona ( email )
1201 E. Speedway Blvd.
Tuscon, AZ 85721-0176
United States
520-626-7256 (Phone)
520.858.0025 (Fax)
HOME PAGE: http://www.orbach.org

Kathleen S. Callahan
University of Arizona - James E. Rogers College of Law ( email )
P.O. Box 210176
Tucson, AZ 85721-0176
United States
Lisa M. Lindemenn
University of Arizona - James E. Rogers College of Law ( email )
P.O. Box 210176
Tucson, AZ 85721-0176
United States
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