Interesting challenge to federal gun laws in Montana, Texas, and Utah
HELENA, Mont. (AP) — Montana is trying to trigger a battle over gun control — and perhaps make a larger point about what many folks in this ruggedly independent state regard as a meddlesome federal government.
In a bill passed by the Legislature earlier this month, the state is asserting that guns manufactured in Montana and sold in Montana to people who intend to keep their weapons in Montana are exempt from federal gun registration, background check and dealer-licensing rules because no state lines are crossed.
That notion is all but certain to be tested in court.
The immediate effect of the law could be limited, since Montana is home to just a few specialty gun makers, known for high-end hunting rifles and replicas of Old West weapons, and because their out-of-state sales would automatically trigger federal control.
Still, much bigger prey lies in Montana's sights: a legal showdown over how far the federal government's regulatory authority extends.
"It's a gun bill, but it's another way of demonstrating the sovereignty of the state of Montana," said Democratic Gov. Brian Schweitzer, who signed the bill.
Carrie DiPirro, a spokeswoman for the federal Bureau of Alcohol, Tobacco, Firearms and Explosives, had no comment on the legislation. But the federal government has generally argued that it has authority under the interstate commerce clause of the U.S. Constitution to regulate guns because they can so easily be transported across state lines. . . . .
Texas is working towards passing such a law.
A bill by state Rep. Leo Berman exempting Texas-made firearms, gun accessories and ammunition sold within the state from federal regulation and law -- including registration -- was heard in a House committee on Monday.
The bill also provides for the Texas Attorney General's office to defend Texans who run afoul of the federal government because of this law.
Berman, a Tyler Republican who has pushed several "states' rights" measures this legislative session, said his bill would affect more than 300 manufacturers in the state.
"Under the 9th and 10th Amendments of the U.S. Constitution, states have responsibility for regulating intrastate commerce," Berman said. "The federal government has no role." . . . . .
Utah is also considering a similar law:
Some Utah legislators are eyeing a bill aimed at preventing the federal government from regulating guns in the state.
Montana's Legislature recently passed a bill that Gov. Brian Schweitzer signed into law that would exempt guns made in the state and kept within its borders from federal regulations, including registration, background checks and dealer-licensing.
It's an idea that's appealing to some of Utah's conservative legislators, who say President Barack Obama and the Democrat-controlled Congress are strongly anti-gun and are trying to overstep their bounds and infringing on states' rights.
"I think [Montana's law] preempts somewhat what the federal government is trying to do right now in gun registration," said Rep. Carl Wimmer, R-Herriman. "This is something Utah should look into. We should look into several different avenues to reassert state rights."
Wimmer says he or one of his colleagues may run a similar bill in next year's legislative session, and it's an idea that has traction among many legislators who are fiercely pro-gun rights and pro-states' rights.
UPDATE: Time magazine has caught up on this story.
"It is part of the populist state-sovereignty movement, the sense there is so much power in Washington," says Stephen P. Halbrook, a Virginia attorney who has argued several important Second Amendment cases before the Supreme Court, including, most recently, a successful case overturning the Washington, D.C., gun ban. Halbrook says the Montana initiative had been simmering long before President Obama's election, which led to reports of a run on gun and ammunition across the country because of fear of new federal curtailment or taxation of gun ownership. "It is a grass-roots thing," Halbrook says, "not an NRA [National Rifle Association] initiative." The NRA, however, has expressed its support for the measure.
It is likely the Montana law will end up before the Supreme Court, Halbrook says, following the same track as the landmark Printz v. United States case, which he argued successfully before the court. That case was filed in Helena, Mont., challenging the constitutionality of requiring local enforcement officers to perform background checks required by the federal Brady Act, regulating handgun sales. The district court found the requirement unconstitutional but was overturned by the more liberal Ninth Circuit Court of Appeals in San Francisco. The lower court decision was affirmed by the Supreme Court in 1997, four years after the Brady Act passed. The ruling was, in effect, moot because a federal background database supplanted local background checks by the time the court ruled, but it left in place an important precedent on the limits of federal law — an issue that the new Montana law raises again.
Gun-regulation supporters say the Montana law is unconstitutional, citing long-standing court decisions going back to the Depression era based on the application of the so-called commerce clause regulating interstate commerce, the Wickard v. Filburn case, according to Paul Helmke, president of the Brady Campaign to Prevent Gun Violence. The courts have ruled that even if a farmer grows his wheat locally, sells it locally and someone buys it locally, the entire transaction process is still governed by interstate commerce because of the concept that his actions affect the entire marketplace — including, most importantly, the ability of a farmer in a neighboring state to sell his wheat across state lines. . . . .