Montana Gun Suit Challenges Federal Authority

[Perchoutofwater]

Montana Gun Suit Challenges Federal Authority

 

Posted by Declan McCullagh

(AP)

A Montana lawsuit filed on Thursday challenges federal authority to regulate guns manufactured and sold within the state, an argument that would effectively invalidate federal firearm laws in Big Sky Country if adopted by the courts.

 

The lawsuit arose out of a state law signed by Democratic Gov. Brian Schweitzer that took effect on October 1. It says that firearms, ammunition, and accessories manufactured entirely inside Montana are not subject to federal regulation, including background checks for buyers and record-keeping requirements for sellers. They would remain subject to state regulation, and machine gun manufacturing is not permitted.

 

This is part of a new grassroots movement that's seeking to invoke the principle of states' rights -- including states' authority to regulate firearms within their borders -- to thwart what backers view as an increasingly overreaching federal government.

 

One of the plaintiffs is Gary Marbut, president of the Montana Shooting Sports Association. The complaint (PDF) says Marbut "wishes to manufacture and sell small arms and small arms ammunition to customers exclusively in Montana" without complying with federal laws but has been told by the Bureau of Alcohol, Tobacco, Firearms, and Explosives that the federal laws "continue to apply." (See related CBSNews.com story about the Obama administration's position.)

 

While this federalism-inspired revolt has coalesced around gun rights, the broader goal is to dust off a section of the Bill of Rights that most Americans probably have paid scant attention to: the Tenth Amendment. It says that "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

 

"We feel very strongly that the federal government has gone way too far in attempting to regulate a lot of activity that occurs only in-state," said Marbut. "It's time for Montana and her sister states to take a stand against the bullying federal government, which the legislature and governor have done and we are doing with this lawsuit."

 

The case was filed by Quentin Rhoades of Sullivan, Tabaracci, and Rhoades in Missoula, Mont., with the support of the Second Amendment Foundation. The U.S. Justice Department, which will be defending the suit in court, did not immediately respond to a request for comment on Thursday.

 

Read literally, the Tenth Amendment seems to suggest that the federal government's powers are limited only to what it has been "delegated," and the U.S. Supreme Court in 1918 confirmed that the amendment "carefully reserved" some authority "to the states." That view is echoed by statements made at the time the Constitution was adopted; New Hampshire explicitly said that states kept "all powers not expressly and particularly delegated" to the federal government.

 

More recently, federal courts have interpreted the Tenth Amendment narrowly, in a way that justifies almost any law on grounds that it intends to regulate interstate commerce. In the 2005 case of Gonzales v. Raich, for instance, the Supreme Court ruled that a person growing Josh Gordon for her own medicinal use could have a "substantial effect on interstate commerce." (In an pointed dissent, Justice Clarence Thomas wrote: "If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything -- and the federal government is no longer one of limited and enumerated powers.")

 

One possibility is is that the composition of the U.S. Supreme Court has changed enough in the last four years to make a repeat of Gonzales v. Raich unlikely; on the other hand, some justices that might have been sympathetic to a sick mother using medical Josh Gordon may not be as willing to embrace federalism if it means zapping gun laws that have been around for over a generation.

 

Another possibility is that proponents can argue -- as Marbut plans to do -- that this case is different. In Gonzales v. Raich, the Supreme Court noted "it is not feasible to distinguish" Josh Gordon that's "manufactured and distributed interstate and controlled substances manufactured and distributed intrastate." The Montana law, by contrast, says that all state-made firearms "must have the words 'Made in Montana' clearly stamped on a central metallic part, such as the receiver or frame."

 

Still, the case amounts to a long shot squared. Perhaps, in a slightly different universe where the Tenth Amendment were not virtually ignored by courts, the plaintiffs would stand a good chance of winning. In this post-Raich reality, even pro-Second Amendment types are skeptical.

 

"I think they probably should succeed and I think they probably won't," Nelson Lund, a professor of constitutional law at George Mason University who specializes in the Second Amendment, told me over the summer. "The Supreme Court has strong precedents that would render this statute invalid."

 

But this is as much as political maneuver as it is a legal one. Even a courtroom defeat would galvanize the burgeoning federalist movement and could lead to more states adopting sovereignty and Tenth Amendment resolutions, a trend that has been documented by the Tenth Amendment Center (and anticipated by forecaster Gerald Celente). If enough state governments vote to resuscitate the Tenth Amendment, even federal courts eventually may pay attention.

 

Link to CBS

 

I tend to agree with the constitutional law professor from George Mason, this probably should succeed but it wont. Hopefully the court's ruling will do enough to rile up those of us that still believe in states rights to mobilize and cause some political change. Could you imagine how much less our national debt would be now if the states still practiced nullification?

[CowboysDiehard]

Link to CBS

 

I tend to agree with the constitutional law professor from George Mason, this probably should succeed but it wont. Hopefully the court's ruling will do enough to rile up those of us that still believe in states rights to mobilize and cause some political change. Could you imagine how much less our national debt would be now if the states still practiced nullification?

 

Man I would LOVE to wear a suit made out of guns. They have those in Montana?

[Furd]

Man I would LOVE to wear a suit made out of guns. They have those in Montana?

 

 

gun suit

[Perchoutofwater]

gun suit

 

Cool, do you know where I can pick one of those up?

[yo mama]

If the 2nd Amendment were the only issue, I'd side with the gun owners. But it isn't. The Commerce Clause basically applies to everything, and the idea that Montana guns never have an impact outside of Montana is preposterous. I think the more interesting academic question is what happens with the Commerce Clause and the 2nd Amendment collide. I care less about the outcome of the case and more about that interesting question of constitutional law.

[westvirginia]

If the 2nd Amendment were the only issue, I'd side with the gun owners. But it isn't. The Commerce Clause basically applies to everything, and the idea that Montana guns never have an impact outside of Montana is preposterous. I think the more interesting academic question is what happens with the Commerce Clause and the 2nd Amendment collide. I care less about the outcome of the case and more about that interesting question of constitutional law.

 

I actually agree with you here - the Feds have the right to regulate interstate commerce, just as they have the right to tax firearms. But for the sale of a firearm which is made in Montana to a resident of Montana, I don't see it. Just as I don't see the feds having any leg to stand on to tell you that you can't build your own. Am I missing something?

[CowboysDiehard]

Awesome Furd, thanks!!!

 

FWIW....In my view ALL guns should be legal for everyone. What you do with one, however, could get you locked up for life.

 

...leaving now...I try not to mix politics with fantasy football

[Perchoutofwater]

FWIW....In my view ALL guns should be legal for everyone. What you do with one, however, could get you locked up for life.

 

I agree with you completely here.

[yo mama]

I actually agree with you here - the Feds have the right to regulate interstate commerce, just as they have the right to tax firearms. But for the sale of a firearm which is made in Montana to a resident of Montana, I don't see it. Just as I don't see the feds having any leg to stand on to tell you that you can't build your own. Am I missing something?

Find a way to guarantee that Montana-made guns never leave the state or affect non-Montana citizens (residents?). Perhaps if Montana were willing to insure all civil damages in connection with Montana-made guns that were (mis)used out of state then I could get on board with their suggestion that Montana guns don't impact interstate commerce. If Montana is willing to put their money where their mouth is then I'd be happy support their point of view.

Edited October 6, 2009 by yo mama

[westvirginia]

Find a way to guarantee that Montana-made guns never leave the state or affect non-Montana citizens (residents?). Perhaps if Montana were willing to insure all civil damages in connection with Montana-made guns that were (mis)used out of state then I could get on board with their suggestion that Montana guns don't impact interstate commerce. If Montana is willing to put their money where their mouth is then I'd be happy support their point of view.

 

When the gun goes out of state then it becomes subject to federal law. Why would it be the fault of the firearm manufacturer if someone misuses it?

[Furd]

FWIW....In my view ALL guns should be legal for everyone. What you do with one, however, could get you locked up for life.

 

 

I agree with you completely here.

 

So you guys wouldn't mind if your neighbor, with a history of emotional or mental disorders and repeated public disturbances, sashays over to Gary's Gun Store and picks up an AR-15 and a case of ammunition?

[yo mama]

When the gun goes out of state then it becomes subject to federal law. Why would it be the fault of the firearm manufacturer if someone misuses it?

Because they are putting products into the stream of commerce, and the Commerce Clause traditionally applies when that stream of commerce crosses state lines. It doesn't matter if people misuse the products. But even if that were relevant, I think at this point its fairly common knowledge that people misuse firearms all the time. That's not to say gun manufacturers should be held responsible for misuse, but it is enough to trigger the federal government's constitutional right to regulate the interstate commerce at issue. Particularly in light of the fact that this particular product is commonly misused.

Edited October 6, 2009 by yo mama

[Kid Cid]

Find a way to guarantee that Montana-made guns never leave the state or affect non-Montana citizens (residents?). Perhaps if Montana were willing to insure all civil damages in connection with Montana-made guns that were (mis)used out of state then I could get on board with their suggestion that Montana guns don't impact interstate commerce. If Montana is willing to put their money where their mouth is then I'd be happy support their point of view.

Ok, I'm clearly not a Constitutional scholar so I have what may amount to a foolish question.

 

Does not the Commerce Clause pertain only to the sale and manufacture of an item? In other words, If I lived in Montana and made a gun then sold that gun to a resident of Montana, that has nothing to do with interstate commerce. If the person that bought that gun then takes the gun to Idaho then any laws being broke are the responsibiliity of the person commiting that particular crime. In this scenario the manufacturer and seller of the gun did not in any way violate any law pertaining to interstate commerce.

 

I guess what I'm getting at is how has the Fed gov't defined things in such a way as to say that the secondary acts after the manufacture and sale of the firearm can be regulated as part of commerce?

[Perchoutofwater]

So you guys wouldn't mind if your neighbor, with a history of emotional or mental disorders and repeated public disturbances, sashays over to Gary's Gun Store and picks up an AR-15 and a case of ammunition?

 

I would, and I would expect my state to make sure that did not happen. Most of my problem with government isn't that something shouldn't be regulated, but by who regulates it. I feel that in most cases the state can do so much more efficiently, and much more to the liking of the people within their borders.

Edited October 6, 2009 by Perchoutofwater

[yo mama]

Ok, I'm clearly not a Constitutional scholar so I have what may amount to a foolish question.

 

Does not the Commerce Clause pertain only to the sale and manufacture of an item? In other words, If I lived in Montana and made a gun then sold that gun to a resident of Montana, that has nothing to do with interstate commerce. If the person that bought that gun then takes the gun to Idaho then any laws being broke are the responsibiliity of the person commiting that particular crime. In this scenario the manufacturer and seller of the gun did not in any way violate any law pertaining to interstate commerce.

 

I guess what I'm getting at is how has the Fed gov't defined things in such a way as to say that the secondary acts after the manufacture and sale of the firearm can be regulated as part of commerce?

You'd think that how it should apply, but it doesn't. Anything that affects commerce, even indirectly, gets caught in the expansive net of the Commerce Clause. Back in WWII some farmer grew wheat for his own consumption and for "farmers market" type sales. The Supreme Court said that impacted interstate commerce on a marco level because if everyone just grew their own wheat no one would buy stuff from out of state. Crazy, but true.

[Perchoutofwater]

You'd think that how it should apply, but it doesn't. Anything that affects commerce, even indirectly, gets caught in the expansive net of the Commerce Clause. Back in WWII some farmer grew wheat for his own consumption and for "farmers market" type sales. The Supreme Court said that impacted interstate commerce on a marco level because if everyone just grew their own wheat no one would buy stuff from out of state. Crazy, but true.

 

In other words the lovely people in Washington have bastardized the commerce clause to mean whatever the hell they want it to mean.

[yo mama]

In other words the lovely people in Washington have bastardized the commerce clause to mean whatever the hell they want it to mean.

Yes.

 

Only the Lopez decision (ironically another gun case) imposed any kind of limit at all on the reach of the Commerce Clause. IIRC, in the government tried to argue that a law creating a "gun free zone" around schools was constitutional under the authority of the Commerce Clause. The government lost that one.

[Perchoutofwater]

Yes.

 

Only the Lopez decision (ironically another gun case) imposed any kind of limit at all on the reach of the Commerce Clause. IIRC, in the government tried to argue that a law creating a "gun free zone" around schools was constitutional under the authority of the Commerce Clause. The government lost that one.

 

Which is why I now have the right to carry in the school parking lot as long as the gun stays in the car.

[Furd]

Anything that affects commerce, even indirectly, gets caught in the expansive net of the Commerce Clause.

 

Including barbeque.

 

Just ask Ollie.

[westvirginia]

You'd think that how it should apply, but it doesn't. Anything that affects commerce, even indirectly, gets caught in the expansive net of the Commerce Clause. Back in WWII some farmer grew wheat for his own consumption and for "farmers market" type sales. The Supreme Court said that impacted interstate commerce on a marco level because if everyone just grew their own wheat no one would buy stuff from out of state. Crazy, but true.

 

That's what I was wondering - I just didn't ask my question as well as kc did. And you already said it's BS in another post, but since it's BS set by precedent then OF COURSE we'll keep doing it. The definition of insanity, doing the same (wrong) thing over and over again and expecting a different result.

[Perchoutofwater]

That's what I was wondering - I just didn't ask my question as well as kc did. And you already said it's BS in another post, but since it's BS set by precedent then OF COURSE we'll keep doing it. The definition of insanity, doing the same (wrong) thing over and over again and expecting a different result.

 

It is BS set by coerced precedence.

[yo mama]

That's what I was wondering - I just didn't ask my question as well as kc did. And you already said it's BS in another post, but since it's BS set by precedent then OF COURSE we'll keep doing it. The definition of insanity, doing the same (wrong) thing over and over again and expecting a different result.

Well, that's one of the reasons I'd be curious to see what wins in a showdown between the 2nd Amendment (which is unambiguous in terms of the "shall not" part) and the Commerce Clause (the contours of which have been pushed farther than the walls of Nadia Sulaiman's uterus).

Edited October 6, 2009 by yo mama

[Perchoutofwater]

and the Commerce Clause (the contours of which have been pushed farther than the walls of Nadia Sulaiman's uterus).

[Missoula Griz]

We do love our guns.

 

Just saying...

[I Like Soup]

When the gun goes out of state then it becomes subject to federal law. Why would it be the fault of the firearm manufacturer if someone misuses it?

 

This is kind of what I was thinking when the question was posed about the firearm leaving a State. It would then become a federal matter.

 

So you guys wouldn't mind if your neighbor, with a history of emotional or mental disorders and repeated public disturbances, sashays over to Gary's Gun Store and picks up an AR-15 and a case of ammunition?

 

I hear what you are saying here. However, I really do think this could be handled at the State level. It isn't like someone can't get a weapon if they really want one. Maybe Perch is right ( ), the States may better be able to police their own policies better than the Feds since they aren't trying to keep track of 300 million people...

 

In other words the lovely people in Washington have bastardized the commerce clause to mean whatever the hell they want it to mean.

 

Let me put that more eloquently, the bassturds in Washington have used the commerce clause to gain more and more power beyond its original intent...

 

Well, that's one of the reasons I'd be curious to see what wins in a showdown between the 2nd Amendment (which is unambiguous in terms of the "shall not" part) and the Commerce Clause (the contours of which have been pushed farther than the walls of Nadia Sulaiman's uterus).

 

That is downright funny!

 

With all of this talk of the Fed trying to gain more and more "power", I'd like to see some of this go the way of State's rights, less intrusion by the Federal government, etc. This could be a good step.