State­side, Mon­tana leads chal­lenge to fed­eral power

The Washington Times Weekly - - Politics - BY VA­LERIE RICHARDSON

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.”

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