"Don’t suppress the Spirit, and don’t stifle those who have a word from the Master. On the other hand, don’t be gullible. Check out everything, and keep only what’s good. Throw out anything tainted with evil."
-- 1 Thessalonians 5:19-22 (The Message)

The Second Amendment: Montana Gun Law Sparks First Shot Against Feds

I had originally reported back in April — here and here — that Montana Governor Bill Schweitzer, a Democrat, had signed into law a bill that would do the following:

AN ACT EXEMPTING FROM FEDERAL REGULATION UNDER THE COMMERCE CLAUSE OF THE CONSTITUTION OF THE UNITED STATES A FIREARM, A FIREARM ACCESSORY, OR AMMUNITION MANUFACTURED AND RETAINED IN MONTANA; AND PROVIDING AN APPLICABILITY DATE.

(H) Signed by Governor 04/15/2009

Today, 10/01/09, marks the day that this particular bill goes into affect; naturally, as commonly believed, a lawsuit has been filed in Montana federal court validating the constitutionality of the State-based legislation (via AmmoLand.com; more research at the link; Update: the following article should read from Missoula, Montana, not Missouri):

MISSOULA, MO --(AmmoLand.com)- The Montana Shooting Sports Association (MSSA) and the Second Amendment Foundation (SAF) filed a lawsuit in federal court in Missoula today to validate the principles and terms of the Montana Firearms Freedom Act (MFFA).

Montana Shooting Sports AssociationThe MFFA was enacted by the 2009 Montana Legislature, signed by Governor Schweitzer, and becomes effective today, Oct. 1.

Lead attorney for the plaintiffs’ litigation team is Quentin Rhoades of the Missoula firm of Sullivan, Tabaracci & Rhoades, PC. The MFFA litigation team also includes other attorneys located in Montana, New York, Florida, Arizona and Washington.

“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,” explained MSSA President Gary Marbut. “The Montana Legislature and governor agreed with us by enacting the MFFA. 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. We welcome the support of many other states that are stepping up to the plate with their own firearms freedom acts.”

“We’re happy to join this lawsuit,” said SAF founder Alan Gottlieb, “because we believe this issue should be decided by the courts.”

The MFFA declares that any firearms made and retained in Montana are not subject to any federal authority under the power given to Congress in the U.S. Constitution to regulate “commerce … among the several states.”

The MFFA relies on the Tenth Amendment and other principles to challenge Congress’ commerce clause power to regulate a wide spectrum of in-state activities. This is a states’ rights effort, using firearms as the object of the exercise.

The MFFA exempts Montana-made and retained firearms, firearm accessories and ammunition from federal power, saying that if these items do not cross state lines, they are strictly INTRAstate commerce, not INTERstate commerce, and not subject to federal authority.

MSSA continues to strongly urge that no Montana citizen attempt to manufacture an MFFA-covered item, even after the law takes effect today, until MSSA can prove the principles of the MFFA in court. Until the courts rule in support of the MFFA, any such manufacturer could be subject to federal criminal prosecution.

CBSNews is also reporting on this story (excerpted):

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 marijuana 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.”)

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 Amendmentresolutions, a trend that has been documented by the Tenth Amendment Center (and anticipated by forecasterGerald Celente). If enough state governments vote to resuscitate the Tenth Amendment, even federal courts eventually may pay attention.

On top of this, Jeff Schreiber at AmericasRight.com has posted a long but exceptionally thought-out piece on how the Supreme Court has agreed to hear a case on whether the 2nd Amendment should be applied to the States (top excerpt):

A little more than a year after the United States Supreme Court held, in District of Columbia v. Heller, that the Second Amendment preserves an individual right to keep and bear arms and in the course of doing so struck down as unconstitutional the District’s strict ban on firearms, the gun battle is once again coming to the highest court in all the land.

Yesterday, the Supreme Court disclosed that it has granted certiorari and will hear McDonald v. City of Chicago, an Illinois case challenging the constitutionality of handgun laws in Chicago and nearby Oak Park. The issue at hand here is incorporation — or whether the Second Amendment will be made applicable to state and local governments.

While I absolutely refuse to predict how the Supreme Court will come down on this issue, or any issue for that matter, I personally firmly believe that the right to keep and bear armsshould be incorporated against the states, and I believe that case law, along with the sentiments and intent of our nation’s founders, supports that idea.

To understand the how and why of incorporation and the Second Amendment, however, it is absolutely essential to consider the history of incorporation, the related controversies new and old, and how incorporation of the Second Amendment is a natural consequence of last year’s decision in Heller.

See my complete coverage under Second Amendment and, more specifically, the Nordyke v. King case.

-Phil

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9 Responses to “The Second Amendment: Montana Gun Law Sparks First Shot Against Feds

  • 1
    American Grand Jury
    October 1st, 2009 23:09

    [...] From the Right-Side-of-Life website: [...]

  • 2
    RealAmerica
    October 2nd, 2009 15:07

    This should prove interesting if the Feds refer to the recent decision from the courts that marijuana is under Federal jurisdiction because ‘it may’ cross a state line. So much for the ‘standing’ aspect of the law requiring a showing of actual damages. The feds want it both ways.

  • 3
    Nick
    October 2nd, 2009 21:11

    Filing a lawsuit over this act was a HUGE mistake. The purpose was to assert state sovereignty, but how can it be state sovereignty if permission is needed from a federal court?

    The state should have simply enforced this law, period, regardless of what any federal official said. That’s how state sovereignty is supposed to work.

  • 4
    Pragmatic Dog
    October 3rd, 2009 01:58

    Good points there Nick.The problem is that states accept federal funding which was the trap that castrated them,essentially.But in theory I wholeheartedly agree.Furthermore,if they rejected all federal funds and acted like a sovereign states they would indeed be sovereign states.

  • 5
    keokuk
    October 3rd, 2009 13:41

    Out of curiosity, why does the discussion of Nordyke v. King not discuss that the Ninth Circuit voted to rehear the case en banc and vacated the original decision?

  • 6
    Melvin E. Holliday
    October 3rd, 2009 14:44

    It would seem that the federal government wants to force all citizens to become criminals. Americans are going to own firearms no mater what the Federal Government dictates even if they have to own them ilegally. I will not concede my second amendment rights to anyone and that includes the Government and anyone else that chooses to try to deprive me from protecting my own property and my family. Good Luck America!

  • 7
    David
    October 5th, 2009 02:32

    I have never understood the entire “incorporation” argument.

    It would seem, by any standard of reason, that any right guaranteed to individuals by the federal government and protected/secured by the Constitution – as it is the supreme law of the land – would naturally be a right that cannot be infringed upon by the states as well. After all, the enumerated rights in our Constitution are rights held by individuals with or without any written document. Our Constitution merely guarantees that those rights are protected by (or from) the federal government.

    The “incorporation” argument is wholly absurd if we are to pretend that only certain rights are protected at both the federal and state level. Can the states deny us the right to free speech? Can they deny the right to a trial by jury? Can they lawfully inflict cruel and unusual punishments? If they cannot, then how can they infringe on the right to keep and bear arms?

    Either these are all individual rights protected by the Constitution, or they are not. Picking and choosing which ones are or are not is not only impractical in a legal sense, but it denies the very principles of individual liberty and the purpose of our Constitution. The fact that our Supreme Court recognizes such a ridiculous concept makes one question whether or not their “supreme” status is deserved or legitimate.

    Why is it so hard for people (and politicians/judges) to read the Constitution and apply it accordingly?

    Common sense is dead.

  • 8
    keokuk
    October 5th, 2009 21:48

    The “incorporation” argument is wholly absurd if we are to pretend that only certain rights are protected at both the federal and state level. Can the states deny us the right to free speech? Can they deny the right to a trial by jury? Can they lawfully inflict cruel and unusual punishments? If they cannot, then how can they infringe on the right to keep and bear arms?

    Either these are all individual rights protected by the Constitution, or they are not. Picking and choosing which ones are or are not is not only impractical in a legal sense, but it denies the very principles of individual liberty and the purpose of our Constitution. The fact that our Supreme Court recognizes such a ridiculous concept makes one question whether or not their “supreme” status is deserved or legitimate.

    Why is it so hard for people (and politicians/judges) to read the Constitution and apply it accordingly?

    The idea that the Bill of Rights was originally intended to restrict only the federal government is not a new one. It dates all the way back to Barron v. Mayor of Baltimore, 32 U.S. 243 (1833). A man claimed that he had certain due process rights under the Fifth Amendment against the City of Baltimore. The Supreme Court tossed his case and basically said, “The Bill of Rights was added to the Constitution because everyone was afraid that this new federal government would start exercising massive power and take over the country. People weren’t afraid of their state governments. Therefore, the Bill of Rights should be read to apply only against the federal government. If it were meant to do so, then the language would say so explicitly.”

    The legal aspects of the argument aside, it is fairly indisputable from a historical standpoint. People feared federal dictatorship but generally trusted their state governments. Indeed, many of the rights under the Bill of Rights are rarely applied against the states because the state constitutions are often more protective than the federal constitution. It was not until the 14th Amendment that the Constitution began turning its attention to the states. (Also, look at the due process clause of the Fifth Amendment and then the due process clause of the Fourteenth Amendment. The latter would be entirely unnecessary if the former were meant to apply to both the federal and state governments.)

    The idea of incorporation and limited applicability of federal constitutional rights against the states is not new, and it is supported by the historical justifications for the original Bill of Rights.

  • 9
    David
    October 6th, 2009 02:23

    keokuk,

    As I previously stated, the Bill of Rights was merely a list of rights already held by individuals and rights that were protected by the government, not granted by it. It does not matter how long the incorporation argument has existed – it is inherently flawed.

    Our natural rights cannot be infringed upon by any government. And it is explicitly declared in our Constitution that the document is the “supreme law of the land,” as well as any laws made in pursuance thereof. None of its clauses need to be “incorporated” against the states for them to be applicable, including – and especially – the Bill of Rights. They are already the “supreme law of the land” by virtue of their very existence in the Constitution.

    To claim that these amendments need to be “incorporated” in order for them to be valid is absolutely absurd. They are already the supreme law and the states cannot do anything to abrogate them, nor can they simply ignore them without legal or other repercussions.

    If the states want to further limit their own power over their citizens, then they are welcome to do so. However, as a minimum, they must abide by the limits on government expressly dictated by constitutional law. No opinion or decision by the judiciary is necessary to apply the Bill of Rights to the states.

    The incorporation argument sounds like a bit too much judicial arrogance to me. And perhaps a bit of state stubbornness as well.