[GMAN]

Montana Gun Law Challenges Federal Powers


Monday, June 15, 2009 8:14 AM

By: Valerie Richardson, The Washington Times
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."

[bentstrider]

Well, at least these states are doing things that are more helpful to people that live there.
Nice, eye-opening article.

[GMAN]

One way the federal government has been able to meddle so much in state affairs is by using the commerce laws. Hopefully, this will help to get them out of things in which they have no business. By the way, this is the main reason the civil war started. It was initially about states rights and over or unfair taxation by the federal government.

[RostyC]

Originally Posted by GMAN

One way the federal government has been able to meddle so much in state affairs is by using the commerce laws. Hopefully, this will help to get them out of things in which they have no business. By the way, this is the main reason the civil war started. It was initially about states rights and over or unfair taxation by the federal government.

and I think we're heading down the road to another conflict. Maybe not a full blown civil war but some kind of conflict. When enough people wake up and realize the money that is wasted or maybe stolen perhaps REAL change will occur.

[avc]

What good will it do if citizens have guns, even an arsenal in each home if the government uses the air force to clean things up ?

Think about David Koresh, he had a ton of guns in his Branch Davidians compound and got wiped out.

But I do agree with the state rights.

[RostyC]

if the government uses the air force to clean things up

We'll send in NASCAR pit crews in the dead of night to take the wheels off the planes. :lol:

[avc]

The ATF and the CIA want to retain all power over the citizens, they claim that they are hands off, but they have a book on everyone, especially splinter groups like the White Supremacists and Neo Nazi groups up in Montana and Wyoming.

They also watch religious nut groups like those in Colorado Springs, Arizona.

[VitoCorleone99]

Originally Posted by avc

What good will it do if citizens have guns, even an arsenal in each home if the government uses the air force to clean things up ?

Think about David Koresh, he had a ton of guns in his Branch Davidians compound and got wiped out.

But I do agree with the state rights.

Quasi-police (like the ATF) raiding a home or a compound is one thing. A repeat of the Civil War is quite another. I don't believe that anybody in our military would follow orders to bomb American citizens. Think about the members of the armed forces that you know personally. Do you think that they would take out your hometown if you were forming some kind of resistance? The whole military structure would break down before it ever came to that. Rogue battalions following individual generals = not pretty.

That being said, I also don't believe that an appreciable number of American citizens would be dumb enough to take up arms against their government. It's fun to do the Howard Beale thing and say that we're mad as hell, but people shooting at each other is not glorious. It's not heroic. It's not patriotic. It's brutal and, perhaps even worse, unpredictable.

If we think we're getting bad results from the current electoral system, just imagine tearing the whole thing up and starting over. The people in this country aren't bound by honor and duty (not to mention belief in their Creator) like the founders were. 'Honor' is a silly old-fashioned word to people these days. Whichever side of a given issue you are on, roughly half the country disagrees with you. Those who agree with you today might not agree with you tomorrow. Are people willing to bet 230 years of history on a roll of the dice? Not me.

The best thing to do is to work within the framework and educate our neighbors, whichever way our beliefs take us. This is what Montana is doing with this gun law. They're going to lose in court. They know this. If the Supreme Court ruled unanimously against Roscoe Filburn, they'll obviously rule that guns made in Montana will affect the interstate gun market, even with a few so-called conservatives on the bench now. The point is to educate people around the country about the growing power of the federal government and the gradual departure from the country's original form. The feds once worked for the states and not the other way around. I sincerely doubt that most of today's high school graduates know this. The folks in Montana are trying to remind them.

And if you think everything going on right now is wonderful, then by all means get your message out there as well. The constitution was just a good start and we need some more Harvard grads to fix it and so forth. You probably won't convince me, but I'm intractable anyway. You only need to sway 2-3% of the public to win anything in this day and age. (President Obama got just 52.7% of the vote in his recent "overwhelming victory," for example.) I just hope that people on both sides will resist the temptation to act like thugs and thus undermine their own points of view. We've seen a few of those examples lately and none of those guys have done anything but hurt the people who would normally agree with their supposed "causes" (to use the word very loosely).

[avc]

I hate to laugh, but I guess you forgot about the Kent State Students getting shot by the Nixon Nazi squad in the Vietnam era.

Also the many other attacks on American citizens conducted by government agencies and the military.

[VitoCorleone99]

Ohio National Guard does not equal U.S. Air Force. A few goofballs firing into a crowd of unarmed demonstrators does not equal the government using the military to fight against its people. Again, there's a huge chasm between Kent State, Ruby Ridge, Waco, et. al. and a situation where the government "uses the Air Force to clean things up." The internment camps during WWII would have been a better example for you to cite, but even then the aggression against Americans wasn't acted out in a violent manner. Your context (not mine) was that an armed population couldn't resist an oppressive government, ostensibly because the government could just bomb us into submission. This will never happen in America. Ever.

Since you're now apparently laughing and you purport to know of "many other attacks on American citizens," perhaps you could name just one. I won't hold my breath. What you can name are isolated incidents where a handful of government agents got out of hand. You had to go back almost forty years for the Kent State example and it doesn't even apply to the discussion about guns. I had to go back over sixty-five years to find an actual government policy of military aggression toward citizens and, once again, it had nothing to do with guns. That policy also has been thoroughly rebuked by succeeding generations within the same government.

Were the Kent State demonstrators armed? No. Were members of the national military ordered to take back a rogue state? No. Were the members who were there to disperse the crowd ordered to fire on citizens by a government leader? No. Were the shooters backed up after the fact by the government that signed their paychecks? No. Forty years and this is your best example? 'I hate to laugh' indeed.

You can name "the Nixon Nazi squad" even though Nixon had nothing to do with the Ohio National Guard being called out on that day. You can assert that groups like the ATF and CIA want to "retain power over all citizens" even though those agencies were created by elected officials, serve at least some useful purpose for the nation, and could be disbanded by elected officials. If Congress disbanded the BATF, do you honestly think that the members of that outfit could forcefully take control of anything? Control of what? Control of the Air Force to mop up a few cities maybe? Come on now. Would you even want Congress to disband the CIA? I wouldn't.

No, in reality the government will continue to repress its people the way it always has - peacefully and in broad daylight by enacting laws that contradict the Constitution. Where they can't pass laws they'll have judges declare policy by fiat. And we'll either keep electing the Ivy League crowd or we'll wise up and move back toward the Constitution. We won't, however, be overthrowing any governments through civil war or armed revolution. Those who think that they're the next Patrick Henry and Paul Revere are living in a fantasy world.

(Now, whether or not the country ultimately splinters as a result of fiscal insolvency is another question entirely. Again though, nothing to do with guns.)