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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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Photo courtesy CBS

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