http://www.washingtontimes.com/news/2009/jun/15/gun-law-challenges-federal-powers/?feat=home_top5_shared

Monday, June 15, 2009

Mont. gun law challenges federal powers

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 conversation 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 law-enforcement 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 qualified as 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.

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."

This should have passed in Texas too.  Hopefully next session.

Fuck Helmke and the Brady Bunch.

Looks like I should think about moving out of the wonderful state of Chicagostan.

Wait- It didn't pass? WTF?!

FUCK THE NEW DEAL!

Its all good except they are not addressing machine guns.

I want a M4 beside my bed.

Good read!

Paul Helmke needs to have his ass kicked by a mugger.

Slave will enjoy this thread more than a Sears catalog.

Just FYI, the Slave_A talk is what got Napoleon_Banerite tossed out. Maybe you don't agree with him (I sure don't on a number of issues), but careful with the name-calling.

Yeah, any action on the breaking the law on the Fed level and getting a challenge?  anybody opened a new manufacturing shop?  Anything actually changed yet.

Somebody wake me up when a state passes a law that is trying to make a real difference.

Not trolling or being a smart ass when I ask this:  Can someone fill me in on the slave thing?

It's in reference to the member Dave_A, who apparently doesn't like the 10th amendment and supports what many would consider overbearing government policies.  In my experience he has been solidly pro 2A however.  He owns a registered MAC-10 M11/9.

"... I find by the public papers that your Commercial Convention failed in point of representation. If it should produce a full meeting in May, and a broader reformation, it will still be well. To make us one nation as to foreign concerns, and keep us distinct in Domestic ones, gives the outline of the proper division of powers between the general and particular governments.

Letter from Thomas Jefferson to James Madison, Paris Dec. 16. 1786"

The "Commercial Convention" referred to was an attempt to reform the Articles of Confederation(which failed, but ultimately led to the Constitutional Convention) to put (foreign)trade under a single authority.

Telling the fed to FOAD concerning domestic matters isn't a "popular wind".

Dave_A is pro anything that increases government power.

Some asshat on this site decided to nickname me 'Slave_A' due to my penchant for an orderly, law abiding society, and my distaste for anarcho-libertarianisim....
 

Not true...



If I was, I'd be rooting for Ron Paul's fed-audit bill, which is an attempt by Congress to grab control of the money supply (so they can fuck it up, just like they fucked up the banking system)...



I'm not...



I support reasonable, Constitutional measures that ensure the maintenance of rule-of-law, and also support harsh punishments for criminals....



I am also not a fan of social welfare programs (To include tariffs and efforts to 'save jobs').....
 

It's a M-11/9, with a boot-load of Lage upgrades...



And I will point out that I 'like' the 10A just fine... I simply tend to read Article 1 as a very broad grant of power to the Federal government, and have no problem with them exercising said power...



I'm a Federalist - in the original pro-strong-central-govt sense....



I don't think there need to be federal laws against common crimes (murder, rape, robbery) nor do I think the Founders intened for the Federal government to get down in the weeds messing with that crap...



However, I do not have a problem with federal laws regulating commerce in (Drugs, guns, etc) so long as they do not violate any other provisions of the Constitution...



Further, I do not trust the states to respect the rights of their citizens (A 'states right' to tell the feds to fuck off applies to GUN CONTROL just as much as GUN RIGHTS - and the states are by far the worst abusers of citizen rights), and note that these 'challenges to Federal authority' by the states violate the Supremacy Clause of the US Constitution....



THIS is where my opposition to such laws comes from



As I have said many times before:



1) If the law is unconstitutional - either as a violation of 2A or as an over-reach of Commerce - then CHALLENGE IT AS SUCH...



2) If the law is actually constitutional, then the Supremacy Clause is controlling, and the laws you are all cheerleading 'States Rights' for are blatantly unconstitutional themselves!



We must respect ALL clauses of the Constitution - not just the ones that 'agree' with one's personal philosophy...



 

No shit. I didn't realize Dave was so Gangsta.

 

I love my State  

That's nice, other than a lot of publicity, has anything happened?

Jeez, I can't believe how far behind the freaking media is on this stuff - The Washington Times just found out about this?  Didn't MT enact HB 246 in like April?   ...And no mention of TN, which, by the way passed it's own copy, HB 1796, which should become law this week because their spineless governor has stated he will neither sign it or veto it - so it should become law when the signing period expires!  

TN will become the 2nd State to enact a Firearms Freedom Act, yet no mention of it in the aricle!  

http://politics.nashvillepost.com/2009/06/12/tennessee-firearms-freedom-act-to-pass-without-signature/

From the posts I have read, that's been my take on Dave_A.

I serve on the Board of Directors of the Montana Shooting Sports Association (the organization responsible for drafting this law and ushering it through the Committees until it was passed). The effective date of this law is Oct 1st. We are now preparing for the legal battle and starting a fund raising campaign to finance it. In addition, we are still looking for the perfect Plaintiff (one with a clean record, no federal licensing and the ability and resources to produce firearms). After such a person is located a letter will be sent to ATF requesting their position on the legality of someone making and selling rifles without federal licensing, serial numbers or background checks.

Their response will determine the court case.

Oct 1st is the day things will start happening.

This is a deal I keep going to on interstate commerce,









Without getting into merits of that case, I'm not as anti fed as I may seem. But this clause has been to often used as an "easy button". Like the 2nd amendment, it's not as easy as "it says what it says". So this law is a good challenge to uphold the spirit of the clause. Application of the commerce clause has been erratic at best, and certainly seems overreaching in many cases.