Stateside, Montana leads challenge to federal power
A new Montana gun law puts the state at the forefront of a national bid to restore states’ rights by attacking up to a century of federal court decisions on Washington’s power.
Two other states — Alaska and Texas — have had favorable votes on laws similar to Montana’s, declaring that guns that stay within the state are none of the feds’ business. More than a dozen others are considering such laws, and more-general declarations of state sovereignty have been introduced this year in more than 30 legislatures.
The federal courts may not respond well to these laws in the short term, but backers who acknowledge this say that regardless they intend for the laws to change the political landscape in the long term. They hope these state laws will undercut the legitimacy of contrary federal law — as has happened with medicinal marijuana — and even push federal courts to bend with the popular wind.
“What’s going on is that people all over the country have decided, ‘Enough is enough,’ ” said Kevin Gutzman, a professor at Western Connecticut State University and the author of “Who Killed the Constitution?” “This is supposed to be a federal system, but instead Congress seems to think it can legislate anything it wants.”
In May, Montana became the first state to approve the Firearms Freedom Act, which declares that guns manufactured and sold in the Big Sky State to buyers who plan to keep the weapons within the state are exempt from federal gun regulations.
According to the act’s supporters, if guns bearing a “Made in Montana” stamp remain in Montana, then federal rules such as background checks, registration and dealer licensing no longer apply. But court cases have interpreted the U.S. Constitution’s Interstate Commerce Clause as covering anything that might affect interstate commerce — which in practice means just about anything.
So if this law sounds ripe for a court challenge, well, that’s the idea, said Gary Marbut, president of the Montana Sports Shooting Association, the state’s largest pro-gun group.
“The Interstate Commerce Clause has grown and grown until the government asserts authority over everything under the sun,” said Mr. Marbut, who wrote the original firearms legislation. “How much water you have in your toilet. Almost all environmental laws. Maybe one-third of all federal regulations are asserted under the Commerce Clause.”
Even if the Montana law, or similar bills already being pushed in other states, don’t produce a blockbuster decision overturning a century’s worth of economic rulings, supporters hope it will change political conversa- tion and make federal intrusion on state matters politically unpalatable.
The federal government, said Mr. Marbut, “is a creation of the states, and the states need to get their creation on a leash.”
In that sense, the law is only nominally about guns. “Guns are the object, but states’ rights are the subject,” he said.
Even so, gun-control groups have blasted the law. Paul Helmke, president of the Brady Campaign to Prevent Gun Violence, called it “wrong from the constitutional side and wrong from the policy side.”
But it’s catching on with state legislatures. Five states have introduced their own versions of the law, while lawmakers in a dozen more are considering it.
In Alaska, the state House approved the Alaska Firearms Freedom Act by a vote of 32-7, but the legislature adjourned before the bill could reach the Senate. In Texas, a similar bill sponsored by state Rep. Leo Berman won approval in the Public Safety Committee on a 5-0 vote, but failed to reach the floor before adjournment on June 1.
The three other states to see bills introduced were Minnesota, South Carolina and Tennessee. Lawmakers in Georgia, Missouri, Ohio, Oklahoma, Louisiana, Kansas, Arizona, Colorado, Wyoming, Utah, Idaho and Washington are considering an in-state gun law of this sort.
Passing the Montana law was just the first step. Supporters are now working to ignite the legal battle by choosing a manufacturer willing to construct a “Made in Montana” line of guns, then contacting the Bureau of Alcohol, Tobacco, Firearms and Explosives to see whether the firearms can be sold without dealer licensing.
If the bureau declares such sales illegal, backers say they plan to pull the trigger on the lawsuit.
That’s when the entire enterprise threatens to collapse. Even supporters say it’s a long shot that a federal court will overturn a century of legal history to rein in the Interstate Commerce Clause.
The Rehnquist court issued two decisions that limited congressional power under the Commerce Clause, though both decisions concerned lawenforcement matters.
The 1995 U.S. v. Lopez ruling struck down the Gun-Free School Zones Act, which made it a federal crime to have a gun near a school, and the Violence Against Women Act was nixed in the 2000 case of U.S. v. Morrison. The court decided that neither school crime nor sex-based violence was interstate commerce.
But the “local only” approach hasn’t been as successful.
As far back as 1905 (Swift v. U.S.), the Supreme Court upheld federal regulations of meat dealers who bought and sold locally as permitted by the Interstate Commerce Clause. In Wickard v. Filburn in 1942, the justices ruled that even wheat that never left the farm — the farmer fed his cattle with it — affected the interstate wheat trade and thus was subject to federal regulation — in that case, production quotas.
As recently as 2005, the Supreme Court ruled in Gonzales v. Raich that the federal government could prohibit medicinal marijuana grown and consumed solely in California because it was indistinguishable from marijuana grown across state lines. Advocates of medicinal marijuana lost the court case, but the Obama administration has come out in favor of stopping raids on marijuana grown for medicinal purposes.
“After the Raich decision, the Supreme Court essentially abdicated any role as constitutional enforcer of the scope of interstate commerce power,” said David Kopel, research director of the Independence Institute in Golden, Colo.
The Montana law avoids the Raich trap, say advocates, by requiring that guns manufactured for use only in Montana to be stamped, “Made in Montana.” But the law could have more impact on the political system than the courts.
“If a lot of states pass these [Firearms Freedom Act] laws, a political nominee might say, ‘I have the discretion to do this. We’re going to tell the BATFE (Bureau of Alcohol, Tobacco, Firearms and Explosives) to focus its priorities on interstate gunrunning, not intrastate,’ ” Mr. Kopel said.
One design flaw with the Montana Firearms Freedom Act is its focus on firearms, said Mr. Helmke, of the Brady Campaign. There aren’t that many federal laws regulating guns, apart from those requiring dealer licensing, banning machine guns and prohibiting felons from buying firearms, he said.
Mr. Helmke added that the courts were unlikely to side with Montana, describing the Interstate Commerce Clause as “settled federal law.”
“In effect, Montana’s trying to turn back the clock to pre-New Deal times, or even pre-Civil War times,” Mr. Helmke said.
That may be true, but Mr. Marbut thinks public opinion in favor of such a change is growing. He pointed to the popularity of state sovereignty laws, which have been introduced this year in more than 30 states. And where the public goes, the judiciary often follows.
“The courts do pay attention to something they call ‘emerging consensus.’ It means the natives are getting more than restless,” he said. “Hopefully, because there are so many clones of the Montana Firearms Freedom Act being introduced in other states, the courts will recognize this as an emerging consensus.”